Section 704 of Title VII protects an employee from retaliation for "opposing" the employer's illegal discrimination or for "participating" in a proceeding raising a claim of discrimination banned by Title VII. Other employment discrimination laws have similar protections. Courts have long admonished that an employee who complains about working conditions other than prohibited discrimination is not engaged in protected "opposition." Although it may be coincidence, in some recent cases, courts have made some surprising, somewhat arbitrary, and pro-business rulings on what is and is not "opposition."
Manager's Complaints of Employer's Racially Discriminatory Disciplinary Practices
In McGruder v. Epilepsy Foundation of Amer.,* the plaintiff complained to her superiors about (1) a subordinate Caucasian employee's poor work performance and racist remarks, (2) her wish to discipline (or even fire) the Caucasian employee, (3) her disagreement with the employer's directive that the Caucasian employee not be fired, (4) the employer's unequal discipline of African-American workers for the same infractions as those committed by the Caucasian employee, and (5) her accusation that the employer engaged "in a practice of insulating white employees from discipline."
Obviously, in McGruder, the plaintiff's complaints did not relate to discrimination she suffered. Nor did she voice complaints specifically on behalf of any other employee. Nevertheless, she complained of race discrimination against African-American employees in employee discipline. However, her complaints were held not to be protected "opposition."
The plaintiff argued, by analogy, that an employee's "opposition" to workplace discrimination is protected, even if the employee has inaccurate information or is otherwise unaware of the true facts. The Court agreed, but distinguished that proposition, concluding that the allegations made by the plaintiff in this case, if accurate, would not be unlawful under Title VII, as a matter of law. "Title VII protects a Plaintiff who is wrong about the facts but will not protect a Plaintiff mistaken about the law. In other words, Title VII only protects a Plaintiff who is ultimately wrong as to whether Defendant in fact engaged in the unlawful employment practice she reasonably believed it to have engaged in. Title VII does not protect a Plaintiff who reasonably, but wrongly, believes that a certain practice of Defendant is unlawful."
Other complaints that the plaintiff made about the Caucasian employee's poor work performance were not protected "opposition" because they did not assert discrimination prohibited by Title VII.
The Court in McGruder offered no clear explanation as to why the race-based disparity in discipline about which the plaintiff complained would not, as a matter of law, be a violation of Title VII. And, if the Court's explanation is that the plaintiff did not complain of this disparity on her own or another employee's behalf, this "standing" requirement is a subtle new legal requirement, to state a retaliation claim under Title VII.
Manager Helps Process a Sexual Harassment Complaint
Another surprising "opposition" decision was Rice v. Spinx Co., Inc.** There, a convenience store manager helped a woman get a job at another one of defendant's stores. She later complained to him of sexual harassment at her store. He contacted his supervisor and Human Resources to learn how he should handle the situation. He was told to have the woman prepare a written statement, for HR. He had the woman prepare such a statement and personally sent it to the corporate office. This led to an investigation by HR.
The store manager was later discharged from his employment. He alleged that he was fired in retaliation for his protected "opposition" to sexual harassment and his "participation" in the company's grievance process. (In response, the employer contended that he was fired because HR's interview of the woman revealed that the plaintiff had improperly assisted her with her paper and pencil pre-employment test, in violation of instructions. The company considered this to be a form of falsifying or misrepresenting test results.)
The Court ruled, as a matter of law, that the plaintiff had not "opposed" sexual harassment (or "participated" in a formal or informal proceeding to address unlawful discrimination). According to the Court, he did nothing more than process the woman's sexual harassment complaint. He had no personal knowledge of the facts; he did not witness the alleged harassment; he was not interviewed by HR in its investigation; and he did not gather information regarding the allegations. The Court in Rice concluded that the store manager had merely acted within the scope of his responsibilities by processing the complaint, and as such, had not engaged in Title VII-protected activities.
Manager's Complaints About Insufficient Action on On-the-Job Sexual Assaults
A final example of courts putting restrictions on retaliation claims is Brush v. Sears Holdings Corp.*** There, a Loss Prevention Coach over 20 stores was assigned to investigate a worker's sexual harassment allegations, and was fired shortly after she completed the investigation. She claimed that the discharge was because - both during and after the investigation - she had complained that Sears was not taking sufficient action to address the sexual assaults of female employees. The Court, as in the above cases, decided that her complaints about Sears' alleged were not protected "opposition."
In Brush, the plaintiff met one-on-one with an employee who was making vague complaints of sexual harassment, after a team interview had obtained little information. The employee then reported to her that she had been sexually harassed and even raped by a member of store management. The complainant begged that her husband and the police not be advised of this.
The investigation resulted in the firing of the accused sexual harasser. But during and after the investigation, Ms. Brush advocated to Sears management that further action was warranted - such as summoning law enforcement and taking other actions to protect women from rape in the workplace. She asserted that Sears had "negligently allowed three forcible rapes to occur on its premises and done nothing about it." Sears did nothing more.
Ms. Brush was fired shortly after the investigation. (Ironically, Sears' explanation was that she had committed procedural errors in the investigation - interviewing the complainant one-on-one, not videotaping her interview with the complainant, and asking leading questions.) In her suit, plaintiff alleged she had been fired for "opposing" actions prohibited by Title VII.
The Court ruled that, as a matter of law, complaints about an employer's internal grievance process, and challenges to the adequacy of the employer's grievance system or practices to prevent sexual harassment and assault, were not protected "opposition" under Title VII. No employer is legally required to have an internal grievance process (it remains a good practice); therefore, the absence or inadequacy of such a system is not a Title VII violation. Hence, employees who criticize the absence or adequacy of such a process are not voicing Title VII violations. Moreover, an attack on the employer for not contacting law enforcement - consistent with the victim's wishes - could not reasonably be deemed an unlawful practice. As an investigator, Ms. Brush was not an advocate or witness for the complainant. Likewise, opposition to the rape of female employees generally is not opposition to the rape of any particular employee.
In addition to the above rationale, the Court ruled that no protected "opposition" had been voiced by Ms. Brush, under the so-called "Manager's Rule," as all of her communications had been made in her role as Loss Prevention Coach.
Finally, the Court pointed out that the plaintiff's allegations would have permitted her to seek retaliation protection under the "participation" clause of Section 704 - as she had "assisted . . . in an investigation, proceeding, or hearing under this subchapter," 42 U.S.C. § 2000e-3(a) - but that she had waived any "participation" claim by conceding before the lower court that she could only recover under the "opposition" clause.
* McGruder v. Epilepsy Foundation of Amer., Civil Action No. 11-cv-02310-AW (D. Md. March 9, 2012).
** Rice v. Spinx Co., Inc., Civil Action No. 6:10-01622-JMC (D.S.C. March 2, 2012).
*** Brush v. Sears Holdings Corp., No. 11-10657 (11th Cir. Mar. 26, 2012).