There is a uniform rule in the federal court system: an employer may not retaliate against an employee for reporting what the employee “reasonably believes” to be a violation of federal anti-discrimination law.

Take the following scenario as an example. John Doe complains to his employer that his department’s supervisor demoted a co-worker because of the co-worker’s race. If John Doe is fired after making the complaint, he might have a viable retaliation claim if he can establish he “reasonably believed” his supervisor discriminated against the co-worker because of the co-worker’s race. John Doe need not actually prove that his co-worker has been discriminated against; John Doe need only prove he reasonably believes his co-worker’s demotion resulted from unlawful race discrimination.

On April 8, 2016, the Fifth Circuit Court of Appeals considered the “reasonable belief” standard in a new factual context. Rather than an employee proactively complaining about discrimination, the plaintiff in the case of EEOC v. Rite Way Serv., Inc., No. 15-60380 (5th Cir. 2016) simply responded to questions asked during a company investigation. Specifically, the plaintiff witnessed her supervisor pretend to smack her co-worker’s behind while saying “ooh wee” and witnessed her supervisor make comments related to the tightness of her co-worker’s pants. When the co-worker complained and the employer thereafter investigated, the plaintiff recounted what she witnessed to the employer. The plaintiff was terminated less than a month later, allegedly because of her response to the employer’s inquiry.

The Equal Employment Opportunity Commission filed suit on behalf of the plaintiff, and the trial court dismissed the case. It was held that the plaintiff could not have “reasonably believed” that the supervisor’s conduct violated Title VII because “severe or pervasive” conduct is required to rise to the level of unlawful harassment, and the supervisor’s conduct constituted mere “isolated incidents” of inappropriateness. The EEOC appealed, arguing that the “reasonable belief” standard should only apply to “proactive” complaints, i.e. not to reactive complaints where an employee responds to questions from an employer.

The Fifth Circuit rejected the different treatment the EEOC proposed for reactionary statements. In the court’s view, the “reasonable belief” standard strikes the appropriate balance between protecting employees from adverse action and protecting employers from baseless complaints. The Fifth Circuit did, however, remand the case back to the trial court for the purpose of having a jury determine whether the plaintiff “reasonably believed” the supervisor’s conduct was unlawful under Title VII.

Several takeaways are important from the Rite Way Serv., Inc. decision:

  1. The EEOC uses appellate litigation as one method to try and advance aggressive policy interpretations of the statutes it enforces. Employers in non-Fifth Circuit jurisdictions should assume the EEOC will take the position it pitched in the Fifth Circuit in their circuits unless there is controlling circuit law to the contrary.
  2. The “reasonable belief” standard applies equally to proactive and reactive employee responses to alleged discrimination, so it is important to handle with care witnesses who are part of an internal investigation.
  3. Whether an employee “reasonably believes” certain conduct to be unlawful often will be a jury question.