Why it matters
A statement to a supervisor to “stop” harassing conduct satisfies the requirements of Title VII of the Civil Rights Act, according to a panel of the Sixth Circuit Court of Appeals. In a suit brought by the Equal Employment Opportunity Commission (EEOC), a jury awarded $1.5 million to three female employees who alleged their supervisor sexually harassed them (as well as a male co-worker who objected to the unlawful conduct) and then retaliated against all four of them. The employer appealed. The employees could not recover because they did not engage in protected activity constituting opposition under the statute, the employer argued. But the federal appellate panel said all of the complainants verbally requested that the supervisor stop his behavior, satisfying the opposition clause of Title VII. “If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct,” the court wrote.
New Breed Logistics operated a warehouse in Memphis, Tenn. where James Calhoun worked as a supervisor in the receiving department. Under his supervision were three female employees: Jacquelyn Hines, Capricius Pearson, and Tiffany Pete, as well as Christopher Partee, a male forklift driver.
Each of the three women accused Calhoun of making sexually suggestive comments repeatedly, sometimes several times a day and sometimes accompanied by physical contact. At trial, Pete testified that she told Calhoun to “leave [her] alone” daily, while Pearson “ask[ed] him to stop talking dirty to me like he was” and Hines told Calhoun to “get the f#*k out of my face.” Partee, who witnessed and overheard the harassment, spoke to Calhoun and told him to “calm down on making them comments because I don’t believe them women was liking that.”
Pete made an anonymous call to New Breed’s complaint line and the company sent a human resources manager to investigate. She visited the facility and asked Calhoun five questions related to the allegations, and then determined no misconduct occurred.
All four employees were terminated from New Breed and each produced evidence at trial that Calhoun was directly or indirectly involved in each termination. A jury awarded the four employees more than $1.5 million in compensatory and punitive damages.
New Breed appealed, challenging the sufficiency of the evidence and arguing that it was entitled to judgment as a matter of law because none of the plaintiffs engaged in protected activity constituting opposition. The Sixth Circuit Court of Appeals disagreed and affirmed the jury’s verdict.
Section 2000e-3(a) of Title VII prohibits an employer from retaliating against an employee on two grounds, the court said: for “opposing any practice made an unlawful employment practice by this subchapter” or for an employee who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
Each of the plaintiffs met the requirements of the first, so-called “opposition clause,” the panel held.
“[A] demand that a supervisor cease his/her harassing conduct constituted protected activity covered by Title VII,” the court concluded. “Sexual harassment is without question an ‘unlawful employment practice.’ If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed. Therefore, it would be unfair to read into the provision a requirement that a complainant only engages in protected activity when s/he opposes the harassment to a ‘particular official designated by the employer.’”
The federal appellate courts are split on this issue, the Sixth Circuit noted. Similar rulings can be found in the Seventh and Eighth Circuits, with contrary holdings in the Fifth Circuit and a federal district court in New York.
“Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations,” the court wrote. “Consistent with our holding today, these complaints constitute protected activity.”
New Breed had knowledge of the protected activity, the panel added, because Calhoun either terminated the plaintiffs himself or became the driving force behind their terminations under a cat’s paw theory of liability. (This theory holds that an employer can be liable for discrimination or retaliation if the employer acts innocently but based on input from a biased employee.) But-for causation was similarly satisfied based not only on the temporal proximity to the plaintiffs’ terminations after their complaints but also on the jury’s findings that the employer’s proffered non-discriminatory reasons for termination were pretextual.
“Evidence was presented to show that Calhoun subjected Hines, Pete, and Pearson to sexual harassment and then, either directly or indirectly, engineered the terminations of all three women and Partee after they all complained about his harassment,” the panel wrote. New Breed only distributed its anti-harassment and anti-discrimination policies to permanent employees—just 20 percent of the workforce at the Tennessee facility—and the jury heard evidence about the investigation undertaken when Pete complained, which consisted of a single interview of Calhoun.
“The jury could have found this to be insufficient investigative action to enforce New Breed’s anti-harassment policy,” the court said. “Additionally, the fact that Pete, Pearson, and Partee were all terminated during [the] investigation could also have led the jury to reject New Breed’s assertion that it engaged in good-faith efforts to prevent retaliation.”
Affirming the jury’s $1.5 million verdict, the panel also upheld the lower court’s denial of New Breed’s motion for a new trial and judgment as a matter of law.
To read the opinion in EEOC v. New Breed Logistics, click here.