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One racist comment, one report to management, one less employee
August 14, 2006 by Ross Runkel at LawMemo
Jordan v. Alternative Resources (4th Cir 08/14/2006 - after a rehearing) makes me want to talk about one of the difficulties of Title VII retaliation law: What employee conduct is protected from retaliation?
In Jordan, an employee complained to management about one extremely crude racist comment from a co-worker. A month later he got fired. The court said (2-1) that no reasonable employee would believe that the one comment created a hostile work environment, so reporting it wasn't protected by Title VII, and it would be OK for the employer to fire him for that.
I'll give you three examples. Let's assume that an employee sees some horribly crude sexist conduct going on, and reports it to management, and gets fired for doing that. The conduct that the employee complained about is going to fit into one of these three groups:
- The conduct was a violation of Title VII because it was sufficiently pervasive or severe, and it was because of sex. The employer is not allowed to fire the employee for reporting the conduct.
- The conduct was not a violation of Title VII, but it was a close call, so a reasonable employee could believe that the conduct violated Title VII even though it didn't. The employer is not allowed to fire the employee for reporting the conduct.
- The conduct was not a violation of Title VII, and it was not a close call, so no reasonable employee could have believed that the conduct violated Title VII. The employer is allowed to fire the employee for reporting the conduct.
I have three serious problems with this approach.
First. Read the statute (Title VII Section 704). It says, in the part we care about here:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII]."
If the plain meaning of a statute has any plain meaning, then the only "practice" an employee can complain about and get Title VII protection is conduct that actually violates Title VII (category #1 above).
Category #2 above is the creation of the courts. They added this because they thought it was a good idea. I think it's a good idea too, but usually judges are only allowed to interpret Congress' statute, and not to add in all their good ideas.
Second. It's a pretty fuzzy line between category #2 and category #3. According to the judges, it's easy, because all they have to do is figure out what a reasonable person would think. But how does a male judge know what a reasonable woman would think? And how does a white judge know what a reasonable black employee would think? The Jordan case illustrates the problem; two judges voted category #3 and one judge voted category #2. "Reasonable" judges can't agree on what a "reasonable" employee would believe.
(To make it worse, I think the judges usually analyze it wrong. The real question should be whether any reasonable juror could conclude that a reasonable employee would believe there was a Title VII violation.)
Third. Category #3 creates a trap for the conscientious employee. Jordan is the great example. He sees what looks like the beginning of a racially hostile work environment, and reports it to management as he has been instructed to do. The court says he can be fired for that, because it was category #3.
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