High Court Raises Bar for Employee Retaliation Claims

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against employees on the basis of race, color, sex, religion, and national origin. Title VII also prohibits employers from discriminating or "retaliating" against employees who "oppose" unlawful discrimination. In other words, employers cannot take adverse employment action against an employee for such actions as reporting the alleged discrimination to management or filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”).

Retaliation claims are often made by employees who, after complaining about some perceived unlawful discrimination (e.g., on the basis of race), are subsequently demoted, denied a promotion or terminated. The employee typically alleges he was initially discriminated against on the basis of race, and later retaliated against for making a complaint of discrimination. Retaliation claims have been especially troublesome for employers because the employee is not required to prove that his discrimination claim (in our example, race discrimination) is true; he need only prove he reasonably believed he was discriminated against on the basis of his race, that he opposed the discrimination, and that the employer took some type of adverse employment action against him because of his opposition. Consequently, an employer could be found not to have discriminated against the employee on the basis of his race, but nevertheless be liable for retaliating against that employee for opposing what he believed to be race discrimination.

The United States Supreme Court has issued an opinion that may prove very valuable to employers in defending retaliation claims brought by current or former employees. In Clark County School District v. Breeden, the Supreme Court addressed a claim by a female employee contending her supervisor and another employee retaliated against her for reporting alleged sexual harassment.

The alleged harassment occurred when employee Shirley Breeden, her male supervisor and a male co-worker were meeting to review psychological evaluation reports of job applicants. One of the reports disclosed an applicant once said to a co-worker, "I hear making love to you is like making love to the Grand Canyon." Breeden's male supervisor read the comment aloud and stated, I don't know what that means." The other male employee responded, "Well, I'll tell you later," and both men "chuckled." Breeden reported comments to the men's supervisor.

The Supreme Court noted that Title VII protects employees who oppose not only unlawful discrimination, but also practices that employees reasonably believe to be unlawful. With regard to the unlawful practice Breeden complained of, sexual harassment, the Court observed that "a recurring point in our opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious)" do not amount to unlawful harassment. Accordingly, the Court determined that no one could reasonably believe that the incident recounted above violated Title VII because it was merely an isolated incident and rejected Breeden's retaliation claim.

The significance of the Clark County decision is that the Court provided important clarification to the question of whether an employee's complaint of discrimination or harassment is reasonable enough to support a retaliation claim. Most employees are not knowledgeable about the legal requirements for discrimination and harassment claims and might believe (although incorrectly) that one incident of an offhand comment, such as in Clark County, constitutes sexual harassment. The Clark County decision makes it clear courts should not focus on such a subjective belief (i.e., whether the employee truly believes in his complaint). Rather, courts should examine the underlying allegation in light of legal standards to determine if a reasonable person could believe the alleged discrimination violated Title VII. If the answer is no, then the employee's retaliation claim, based on the opposition of the practice which the employee unreasonably believed to be discriminatory or harassing, will be dismissed.

Although retaliation claims will likely continue to cause employers difficulty in litigation, the Clark County decision should prove to be a valuable tool to help employers defeat retaliation claims based on frivolous discrimination complaints.