What Is Protected Activity Under Title VII (Part 3)

We continue our post discussing that Oppositional Activity Must Be Based On A Good-Faith, Reasonable Belief, And The Activity Itself Must Be Reasonable, Or Else It Loses Its Protection

Oppositional Activity Must Be Reasonable In The Manner It Is Exercised, Or Else It Loses Its Protection. Even if the plaintiff’s activity qualifies as “oppositional,” not all oppositional activity by an employee is protected from employer retaliation. Rather, in order to qualify for the protection, the manner in which an employee expresses his opposition to an allegedly unlawful practice must be reasonable. See Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 721 (6th Cir. 2008); Rollins v. State of Florida Dep’t of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989). If the employee’s conduct in opposing the practice is found to be unreasonable, it falls outside the protection of the law. Therefore the relevant determination is whether the employee’s conduct is reasonable in light of the circumstances. Jefferies v. Harris County Community Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980). “[T]he employer’s right to run his business must be balanced against the rights of the employee to express his grievances and promote his own welfare.” Id. The First Circuit Court of Appeals explained that this test “balance[s] the purpose of the Act to protect persons engaging reasonably in activities opposing . . . discrimination, against Congress’ equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976). See also Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); Kavanaugh v. Sperry Univac, 511 F. Supp. 705, 707 (N.D. Ill. 1981). Thus, for example, an employee may lawfully be terminated if they lie (or even if their employer merely honestly believes in good faith that they lied) in making an internal complaint of discrimination. See EEOC v. Total System Services, Inc., 221 F.3d 1171, 1176 (11th Cir. 2000).

In Jefferies, the plaintiff was an African-American female who, while employed by the defendant, copied and disseminated confidential employment records that tended to document her belief that she was a victim of discrimination. After her termination, Jefferies sued for unlawful retaliation, arguing that her conduct was protected because she had been attempting to bring attention to an employment practice that allegedly discriminated against her. Jefferies, 615 F.2d at 1036. After weighing “the employer’s right to run his business” against Jefferies’s right “to express [her] grievances and promote [her] own welfare,” the Fifth Circuit determined that the plaintiff’s form of opposition was unprotected. Id. The court found that Jefferies’s conduct was clearly unreasonable in the light of the circumstances and her employer legitimately discharged her because of it. Id.

As Jefferies teaches, employee conduct, although fairly characterized as protest of or opposition to practices made unlawful by a law, “may nevertheless be so detrimental to the position of responsibility held by the employee that the conduct is unprotected.” Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 374 (5th Cir. 1998). The law “was not meant to immunize insubordinate, disruptive, or nonproductive behavior at work.” Smith v. Tex. Dep’t of Water Res., 818 F.2d 363, 365-66 (5th Cir. 1987).

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