As long as there has been discrimination in the workplace, courageous employees have spoken up about it. In the past year, employees have pushed hard for workplace equity, as examples from the Audubon Society, Google, Pinterest, and elsewhere show. Unfortunately, many employers have reacted with retaliatory firings.
The story of AI Ethicist Timnit Gebru at Google is perhaps the most recent, well-publicized example of an employee being fired for speaking up. As “one of 1.6% Black women at Google” who felt “constantly dehumanized” by her managers and faced “constant fighting” when she tried to challenge Google leadership, Gebru captured the feeling of countless others in her situation:
It’s just never been peace of mind. Imagine somebody’s shooting at you with a gun and you’re screaming. And instead of trying to stop the person who’s shooting at you with a gun, they’re trying to stop you from screaming. That’s how it felt. It was just so painful to be in that position over and over and over again.
In this kind of culture, it can be hard to delineate whether employer actions are discriminatory, retaliatory, just plain unfair, or all of the above. Title VII of the Civil Rights Act provides a framework with which to sort these issues out. While its application can be imperfect and sometimes unclear, Title VII does provide some powerful protections.[1]
What Title VII Protects
Title VII provides broad protection against discrimination that affects “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Title VII’s anti-retaliation provisions are similarly broad. An employer cannot “discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C.§ 2000e-3(a). An employee alleging retaliation under Title VII must therefore show that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013).
An employee need not be correct that an employer’s practice is, in fact, a violation of Title VII to qualify for protection. Nor does an employee need to use any particular, legal terminology in complaining about discrimination. Instead, an employee must show a good faith, objectively reasonable belief that their employer’s actions were discriminatory. See id. at 126-27.
For example, the Supreme Court only recently recognized Title VII protection for LGBTQ employees in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). That did not prevent some pre-Bostock courts from upholding retaliation claims based on employees’ reasonable but mistaken belief that Title VII prohibited LGBTQ discrimination. See Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 489 (E.D.N.Y. 2011) (dismissing Title VII sexual-orientation discrimination claims while upholding retaliation claims based on complaints of sexual-orientation-based discrimination); Bianchi v. City of Philadelphia, 183 F. Supp. 2d 726, 739 (E.D. Pa. 2002) (holding the same because “lack of knowledge concerning the precise parameters of Title VII does not remove . . . claims from the realm of good faith”).
Along with protections under Title VII, state law analogues of Title VII provide for similar and sometimes more expansive protections. Battaglia v. United Parcel Serv., Inc., 70 A.3d 602, 621 (N.J. 2013) (noting that a plaintiff need not be correct about their complaint of discrimination because of the “public’s strong interest in a discrimination-free workplace” under New Jersey law); Garba Casting Co. v. Mosquera, 99 A.D.3d 600 (1st Dep’t. 2012) (holding that a plaintiff’s retaliation claims can be premised on a reasonable, mistaken belief that he or she is “entitled to the protections of the [New York State] Human Rights Law”); Yanowitz v. L’Oreal USA, Inc., 3116 P.3d 1123, 1131 (Cal. 2005) (noting that “[s]trong policy considerations” support an expansive view of California’s anti-retaliation laws to avoid “deter[ring] employees from opposing conduct they believe to be discriminatory”).
What Does “Reasonable” Mean?
A plaintiff must be objectively reasonable in believing that a particular practice led to unlawful discrimination in the workplace. What seems simple enough, in theory, can be unclear in practice.
Courts come to differing conclusions about what constitutes an objectively reasonable belief in a hostile work environment. One might think, for example, that an employee complaining about a co-worker’s use of the n-word could have a reasonable belief that hearing racial slurs affects one’s “conditions . . . of employment” in a discriminatory way. 42 U.S.C. § 2000e-2(a)(1). A jury in Alabama thought so as well, but the U.S. Court of Appeals for the Eleventh Circuit disagreed, reversing the jury’s finding and holding that a co-worker’s use of the n-word was “nowhere near enough to create a racially hostile environment” because the co-worker did not direct the n-word to the plaintiff and said the word “twice a few minutes apart[.]” Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008). What is objectively reasonable to one court can be nonsense to another, making it hard to find a reliable definition. Denham v. Wal-Mart Stores E., LP, No. CIV.A. 12-0195-WS-C, 2013 WL 1296721, at *7 (S.D. Ala. Mar. 26, 2013) (holding that employer “correctly concede[d]” that employee’s activity was protected after employee complained about overhearing co-worker’s single use of the n-word).
Courts can also be inconsistent in determining whether an employee’s objections are unprotected “debates about equal employment issues” rather than protected complaints of discrimination. Morris v. McCarthy, 825 F.3d 658, 673 (DC Cir. 2016). To provide one example of courts trying to draw these lines, an employer could fire a Native American woman for the “positions on a race related controversy” she offered in presentations about “stereotypes, bias, and racism related to Native Americans[.]” Tallbear v. Perry, 318 F. Supp. 3d 255, 262-63 (D.DC 2018). The court reasoned that this advocacy was not protected because she did not oppose a discrete employment practice which caused discriminatory hiring or promotions.
Within this framework, an employee might not qualify for protection if she states, as a general matter, that her employer should have an affirmative action program. It might be enough, however, if she states that her employer discriminates in hiring through its affirmative action program. Compare Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) (holding that university official who opposed discriminatory hiring as part of affirmative action program engaged in protected activity) with Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir. 1988) (holding that complaint of university “not pursuing affirmative action goals in [a] selection process” was not protected activity).
Drawing general principles from these cases is difficult. At the very least, these cases show that employees should not assume that courts will understand why an employer’s practice might affect “terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Therefore, whenever employees advocate for diversity, equity, and inclusion, they should continue to be specific about what practices they are challenging and articulate how it affects them in the workplace. Unless and until employers stop retaliating or courts start to realize a less restrictive vision of Title VII, it falls to courageous employees and creative lawyers to connect the dots between objectionable employer behavior and the law.
If you have experienced discrimination or retaliation, you should consult with an attorney to determine what your legal options are. Sanford Heisler Sharp has experienced employment discrimination and retaliation lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.
Footnotes
[1] As my colleagues have pointed out, plenty of other laws provide similar protections. Andrew Melzer & Whittney Barth, Whether Employees Can Be Fired for Participating in Peaceful Protests, 2020 U. Ill. L. Rev. Online 221 (Oct. 14, 2020), available at https://illinoislawreview.org/online/whether-employees-can-be-fired-for-participating-in-peaceful-protests/