Sixth Circuit Kicks Open the Door to Much Broader Range of Workplace Retaliation Claims Under Title VII

By David J. Oberly, Esq.*

In recent years, workplace retaliation has remained the most frequent allegation among discrimination complaints, topping claims of race, disability, sex and age discrimination. In Equal Employment Opportunity Commission v. New Breed Logistics, 783 F.3d 1057 (6^th Cir. 2015), the Sixth Circuit Court of Appeals significantly widened the scope of “protected activity” under the opposition clause of Title VII’s retaliation provision. The decision has critical implications for employers as it substantially broadens the burden placed on companies to implement effective strategies for preventing and remedying harassment and retaliation in the workplace.

New Breed Logistics operated a warehouse in Memphis that was staffed with predominantly temporary employees supplied by staffing agencies. A worksite supervisor repeatedly made sexually suggestive comments to three female employees while they were in his department, some of which were overheard by another male employee. All three women voiced their opposition to the harassment directly to their supervisor, and two also reported the harassment on New Breed’s complaint line. In addition, the male co-worker admonished the supervisor for his behavior. In response, a human resources representative conducted an investigation by simply asking the supervisor five questions related to his alleged sexual remarks. Based solely on the supervisor’s denial of the allegations, and without interviewing any other witnesses at the site, human resources concluded that there was no misconduct. Upon the advice of the supervisor, New Breed terminated all four individuals a short time thereafter.

The EEOC filed suit. A jury found that New Breed had permitted the sexual harassment of the three female employees and retaliated by firing the three women and the male co-worker after they complained.

On appeal, New Breed argued that its former employees did not engage in protected activity before their terminations because telling a supervisor to cease his harassment did not constitute a protected activity under Title VII. The Sixth Circuit disagreed, holding that “[a] demand that a supervisor cease his/her harassing conduct constitutes protected activity by Title VII.” Importantly, the court ruled that an employee is not required to file a formal complaint of harassment to be protected against retaliation. Rather, “[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.” Similarly, the court also ruled that Title VII does not require the opposition to be lodged with the company’s human resources department or a specific designated manager, finding that “[t]he language in the opposition clause does not specify to whom protected activity must be directed” and that it would be unfair to hold that a complainant engages in protected activity only when he or she opposes the harassment to a particular official designated by the employer. In the case of the New Breed employees, all four individuals verbally requested that the supervisor stop his behavior, thus fulfilling the requirements of Title VII’s opposition clause.

The implications of this opinion are significant for employers in Ohio, Kentucky, Michigan and Tennessee. After New Breed, simply saying “no” to a supervisor in response to harassment (or anything that an employee feels is subjectively offensive) can potentially lead to a claim for retaliation. As a result, the possibility exists that an employer may be found liable for retaliation without ever having had any opportunity to become aware of and correct the harassing behavior. Fortunately for employers, there are several ways to combat this risk.

The starting point is the implementation of a strong, clear anti-retaliation employment policy. An anti-retaliation statement should put into plain terms precisely what constitutes retaliation and note that the company will not tolerate it in any form or fashion. Furthermore, employers must design and implement anti-harassment policies and procedures that provide multiple avenues for employees to lodge complaints and that require employees to report harassment to someone aside from the alleged harasser.

However, these policies and procedures will serve no purpose unless both employees and supervisors understand what they mean and how they should be utilized. In this vein, employers should train their workers on what constitutes harassment and retaliation and the complaint procedures for addressing such issues. Likewise, supervisors must also be trained on how to properly handle and manage complaints of harassment.

Assuming that the proper policies and procedures are in place to funnel all issues to the appropriate decision makers once a complaint is filed, employers must ensure that they conduct a complete investigation into the matter to determine the merits of the claim. Investigations must be prompt, objective and thorough. A key aspect of the investigatory process is documentation. Every portion of the investigation should be documented in detail. When the investigation is complete, all information obtained during the investigation should be disclosed in a written final report. Effective remedial action should be taken in the event that the claims are substantiated.

Finally, employers must move forward with greater caution when taking a subsequent adverse employment action against a worker who has lodged a harassment complaint. All subsequent employment actions taken with respect to the complainant must be carefully reviewed and scrutinized before being carried out, with an eye on ensuring that the company can successfully rebuff any argument of retaliation by the employee.

*Dave is an associate in our Cincinnati, Ohio office who can be reached at 513.372.6817 or djoberly@mdwcg.com.

_{Defense Digest, Vol. 22, No. 2, June 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}