In Equal Employment Opportunity Commission v. Go Daddy Software, Inc., the Ninth Circuit held unreported workplace comments are relevant in retaliation cases to determine whether an employee engaged in protected activity by complaining of discrimination.
At trial, Youssef Bouamama testified he complained to Human Resources that his supervisor had asked Bouamama what language he spoke, where he came from and what religion he practiced. Bouamama claimed that he was terminated in retaliation for his complaints. The company argued that Bouamama's complaint related to an "offhand comment" that did not amount to discrimination and, therefore, did not constitute protected activity. The Ninth Circuit held that a decisionmaker must look at all the circumstances, not only those which the employee specifically complains of, to determine whether the employee reasonably believed discrimination had occurred. In light of all the comments made – including "Muslims need to die. The bastard Muslims need to die", comments that Bouamama had not formally complained about – the Court held that a jury had ample evidence to support a finding that Bouamama was reasonable in believing he had been discriminated against, and his complaint did constitute protected activity.