Title VII protects workers from retaliation
Published 05/08/01

Not surprisingly, the same laws that protect workers from unlawful employment discrimination also protect employees from retaliation for utilizing protection under that employment discrimination law, or participating in an investigation. Particularly, under Title VII of the Civil Rights Act of 1964, it is unlawful under federal law for an employer to discriminate against any of its workers because the worker has opposed any practice made an unlawful employment practice by Title VII, or because the worker has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. Title VII prohibits employment discrimination based on a variety of protected classes including, but not limited to, race, gender and religion. The prohibition against gender discrimination encompasses the protection against sexual harassment.

On April 23, 2001, the United States Supreme Court in the case of Clark County School District vs. Shirley Breeden clarified when a retaliation claim under Title VII will survive a summary judgment and therefore be able to go to a jury. In finding for the school district against the worker on appeal the Court stated that the particular act which the worker complained of, was one which no reasonable person would believe to be violating Title VII standards, and therefore her retaliation claim failed.

In that case Breeden’s male supervisor had met with her and another male co-worker to review the psychological evaluation reports of four job applicants. The report of one of the applicants disclosed that the applicant had once commented to a coworker, "I hear making love to you is like making love to the Grand Canyon." At the meeting, Breeden’s supervisor read the comment aloud, looked at Breeden and stated, "I don’t know what that means." The male co-worker then said, "Well, I’ll tell you later," and both men chuckled. Breeden later complained about her male co-worker’s comment to two assistant superintendents and Breeden’s supervisor. She claimed she was unlawfully retaliated against by being punished for these complaints.

The Court not only found there was insufficient evidence of a causal connection between the alleged punishment and the complaints, but noted that, as the Court has held in previous employment sexual harassment decisions, simple teasing, offhand comments, and isolated incidences (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment, and therefore does not constitute sexual harassment.

The Court noted that workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with a worker’s work performance.

The Court noted that the ordinary terms and conditions of Breeden’s job required her to review the sexually explicit statement in the course of screening job applicants. Her coworkers who participated in the hiring process were subject to the same requirement and indeed before the Trial Court Breeden conceded that it did not bother or upset her to read the statement in the file. This isolated incident, the Court found, cannot be considered serious enough so as to constitute sexual harassment.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.