Courts increasingly scrutinize the “protected activity” prong of a plaintiff’s prima facieretaliation claim under Title VII of the Civil Rights Act of 1964 and other, similar anti-discrimination laws. This week, in an unpublished opinion, the Fifth Circuit ruled that a plaintiff had not engaged in protected activity by reporting one “Heil Hitler” comment because “no reasonable person would believe that the single ‘Heil Hitler’ incident” constituted a hostile work environment, actionable under Title VII. Satterwhite v. City of Houston, No. 14-20240, (5th Cir. March 3, 2015) (unpublished). Therefore, the plaintiff could not establish a prima facie case of retaliation. The court noted that it has “rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.” Importantly as well, the court recognized that the fact that such a comment violated the employer’s policy does not mean that it rises to the level of an unlawful employment practice as defined by law.
The Fifth Circuit is not alone. Last year, the Fourth Circuit ruled that an employee did not engage in protected activity when she reported that a co-worker used the term “porch monkey” on two occasions. Boyer-Liberto v. Fountainbleau Corp., 752 F.3d 350 (4th Cir. 2014), rehn’g en banc granted by No. 13-1473, July 1, 2014. The Boyer-Liberto decision is on en banc review by the Fourth Circuit, but the decision is similar to other decisions within the Fourth Circuit.
Finally, for years, the Eleventh Circuit has explained that for a complaint to constitute protected activity, the individual making the complaint must have an objectively reasonable belief that the cited conduct was proscribed by the anti-discrimination law at issue. Further, what is objectively reasonable is measured against existing law.
This line of case law poses many interesting issues for employers. The case law does not challenge the notion that a good faith complaint about a single race- or gender-based adverse action constitutes protected activity under Title VII. With respect to hostile work environment claims, some have argued that because employers want to know if employees are making inappropriate comments in the workplace, complaints about inappropriate comments should be considered protected activity even if the conduct in question does not objectively rise to the level of a hostile work environment. Of course, employers may require that employees report inappropriate behavior regardless of how severe or pervasive, employers still may discipline those who engage in such behavior, and employers still may put safeguards in place to ensure that those who complain of such behavior do not face retaliation because of their complaints. Yet, courts are likely to continue to recognize that, while employers are free to impose a more stringent standard of conduct on their employees than is required by law, complaints about violations of such standards may not rise to the level of protected activity under the law.