Telling the Boss to Stop Harassment is Protected Activity

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By:  Karen L. Piper

 

The Sixth Circuit Court of Appeals ruled that an employee’s telling her boss to stop harassing her is protected activity. EEOC v New Breed Logistics (6th Cir., 4/22/2015).

New Breed Logistics (New Breed) opened a new warehouse which it staffed with some direct hires, plus some temporary employees hired through a staffing agency.  James Calhoun was a supervisor in the Receiving Department.  Calhoun had two female temporary employees transferred to his department.  He helped a third female employee get a job directly with New Breed.

Very soon after they were hired, all three female employees claimed Calhoun made sexual comments and engaged in inappropriate touching.  Each of the women asked Calhoun to stop, e.g., “leave [me] alone;” “stop touching [me],” and “I don’t want to hear that [s—] today.”  A male forklift driver in Calhoun’s department witnessed some of Calhoun’s actions toward the women and told Calhoun to “calm down” on the sexual comments because the women didn’t like them.  Two of the female employees also reported Calhoun’s harassment on the New Breed’s complaint line.  In response, a Human Resources employee asked Calhoun five questions about the alleged harassment, which he denied.  Based on Calhoun’s responses, Human Resources concluded that there was no harassment.

All four employees were terminated shortly after these events.  They filed charges with the EEOC which filed suit on their behalf.  The claims were sexual harassment of the women and retaliation against all four of the employees.  A jury found New Breed liable on all claims and awarded all four employees over $1.5 million in compensatory and punitive damages.  New Breed appealed.  The Sixth Circuit affirmed the verdict.

To establish retaliation, the employees were required to show that 1) they engaged in protected activity, 2) New Breed was aware of the protected activity, 3) New Breed took adverse action against the employees after the protected activity, and 4) a causal connection between the protected activity and adverse action.  New Breed claimed, among other things, that there was no protected activity.

Title VII protects conduct “opposing” discrimination and harassment.  The court noted that an employee is not required to file a formal complaint of discrimination or harassment to be protected against retaliation.  “If an employee demands that his/her supervisor stop engaging in [harassment] – i.e., resists or confronts the supervisor’s unlawful harassment – [Title VII’s] opposition clause’s broad language confers protection on this conduct.”

New Breed also argued that an employee’s communication directed solely to a harassing supervisor does not constitute protected activity.  The Sixth Circuit rejected this argument.  It ruled that Title VII does not require that an employee’s opposition to discrimination or harassment be directed to a specific manager or Human Resources personnel – it  would be “unfair” to read into Title VII that opposition to harassment be directed to a “particular official designated by the employer.”  In this case, Calhoun fired one of the women and influenced another supervisor to fire the other three employees.

The court’s ruling that telling a harassing supervisor to stop is protected activity can make it more difficult for employers to remedy harassment.  Employers should review their harassment policies and, more importantly, their training programs to make sure both encourage employees to report harassment to someone other than the harasser.  Another manager or Human Resources employee is more likely to investigate and remedy harassment before the employee suffers a job loss or other adverse action.  If you need assistance with this review, contact the author or other experienced employment counsel.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office.  She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2015.