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Telling harasser to “Stop” is protected activity under title VII

Telling harasser to “Stop” is protected activity under title VII

“Stop.” “Don’t do that.” “Leave me alone.” In a recent decision, the U.S. Court of Appeals for the Sixth Circuit held that when an employee makes statements like these to a supervisor in response to the supervisor’s sexually harassing conduct, the employee has engaged in protected activity under Title VII of the Civil Rights Act of 1964.

In EEOC v. New Breed Logistics, James Calhoun, a supervisor at New Breed Logistics, “repeatedly made sexually suggestive comments” to three females under his supervision – Jacquelyn Hines, Capricius Pearson and Tiffany Pete. Pearson told Calhoun to “stop touching” her, Pete told Calhoun to “leave her alone,” and Hines told Calhoun to “get . . . out of [her] face.” All three employees were later fired. Calhoun was involved in each employee’s termination.

The U.S. Equal Employment Opportunity Commission (EEOC) brought a sexual harassment and retaliation action against New Breed. The EEOC claimed that Calhoun sexually harassed the three women under his supervision and retaliated against them when they objected. A jury agreed, finding New Breed liable for Calhoun’s sexual harassment and retaliation. The jury awarded $1.5 million, including punitive damages.

New Breed appealed, arguing that the evidence did not support the jury’s retaliation verdict because Hines, Pearson and Pete did not engage in protected activity under Title VII before they were terminated. New Breed argued that the act of telling Calhoun to stop the harassment did not constitute protected activity under Title VII. The Sixth Circuit disagreed, holding for the first time that “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.”

In reaching this conclusion, the Sixth Circuit examined the language of Title VII. Under Title VII’s anti-retaliation provision, an employer may not retaliate against an employee who has “opposed any practice made an unlawful employment practice by this subchapter.” This provision is commonly referred to as the “opposition” clause. The court, quoting the U.S. Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville & Davidson County, stated that the term “oppose,” as used in the statute, “carries its ordinary meaning: ‘to resist or antagonize . . . ; to contend against; to confront; resist; withstand.’” So in addition to protecting the filing of formal discrimination charges with the EEOC, the provision also shields employees from retaliation for “less formal protests of discriminatory employment practices.”

The Sixth Circuit held that under these expansive definitions, “[i]f 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 Sixth Circuit concluded that even where the employee’s communication is directed only to the harassing supervisor, the conduct is protected, as “the language of the opposition clause does not specify to whom protected activity must be directed.”

Employers must proceed with increased caution when taking an adverse employment action against an employee who has complained of harassment. Employers may be liable even if the complaint was made only to the harassing supervisor and even if the “complaint” consisted only of telling the supervisor, “stop.”

Employers should develop policies and procedures to encourage employees to report any complaints to the human resources department, and require supervisors to report to HR immediately any communications that could be viewed as “opposition” to the supervisor’s behavior.

By Amanda M. Fielder & Margaret Stalker Jozwiak of Warner Norcross & Judd

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