The U.S. Court of Appeals for the Sixth Circuit (Court) recently held that telling a sexually-harassing supervisor to stop his/her harassment was a protected activity under Title VII's anti-retaliation provision.
In Equality Employment Opportunity Commission v New Breed Logistics, three women had been sexually harassed by their supervisor. Although the women never made formal complaints, they asked the supervisor to stop the harassing conduct. The women were all terminated, two by a different decision-maker. A male employee, who also told the supervisor to stop, was also terminated by a different decision-maker.
Title VII, 42 U.S.C. §2000e-3(a) (Opposition Clause) states that it is unlawful for any employer to discriminate against an employee who has "opposed" a practice, which is an unlawful employment practice. To establish a prima facie case of retaliation, a claimant must show: (1) claimant engaged in activity protected by Title VII; (2) the defendant knew of the protected activity; (3) thereafter, the defendant took adverse action against the claimant; and (4) a causal connection existed between the protected activity and the adverse action.
The Court determined in the case that it was unfair to restrict protected opposition activity to a formal complaint made to a person designated by employer. The Court held that a complaint to the harassing supervisor was sufficient to support a retaliation claim under Title VII. It endorsed the trial court's decision that protected conduct that "can be as simple as telling a supervisor to stop."
Additionally, even though three claimants were terminated by other decision-makers, liability for retaliation extended to those terminations because the harassing supervisor influenced the adverse actions. Using a "cat's paw" theory of liability, the employer may still be liable if the harassing individual is the "driving force behind the employment action."
A jury found New Breed liable under Title VII for the supervisor's sexual harassment and retaliation, and awarded four employees compensatory and punitive damages totaling more than $1.5 million dollars.
What does this case mean for employers?
First, it is a reminder that employers must educate managerial staff and employees, temporary or permanent, on their sexual harassment policies. Supervisors must be trained to handle complaints of harassment appropriately and respond to concerns of harassment.
Next, supervisors must be instructed on the proper procedures and documentation for disciplining/terminating employees. It must be based upon observed, documented misconduct. If a disconnected supervisor disciplines an employee based upon the input of another offensive supervisor, then that disciplinary action can open the employer to retaliation liability under the "cat's paw" theory.
Finally, the case raises the possibility that the "cat's paw" theory can extend retaliation liability to human resources (HR) disciplinary decisions when the decision is motivated by a harassing "driving force" supervisor. HR managers should be cognizant of the issue and may need to question a supervisor's motive behind a disciplinary recommendation, particularly if the supervisor has not followed proper procedures and documentation.