What Is Protected Activity Under Title VII (Part 4)

Participation In Protected Activity Generally Need Not Be Based On A Good-Faith, Reasonable Belief To Be Protected, And Need Not Be Reasonable In The Manner Exercised, Although The Law Is Not Uniform On These Points

Courts Generally Hold That The Participation Clause Does Not Include A Good-Faith Reasonable Belief Requirement, Although The Seventh Circuit Disagrees. Courts that have interpreted the “participation clause” have held that it offers much broader protection to Title VII employees than does the “opposition clause.” See, e.g., Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (“[C]ourts have consistently recognized [that] the explicit language of § 704(a)’s participation clause is expansive and seemingly contains no limitations.”); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (noting that “courts have generally granted less protection for opposition than for participation” and that the participation clause offers “exceptionally broad protection”); Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (stating that the opposition clause serves “a more limited purpose” and is narrower than the participation clause); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006 n.18 (5th Cir. 1969) (noting that the participation clause provides “exceptionally broad” protection for employees covered by Title VII).

The Seventh Circuit Court of Appeals stands out, however, for having arguably merged standards for protection under the two clauses. In 2004, the Seventh Circuit held that an employee who makes a knowingly false and malicious allegation of discrimination in an EEOC charge may be terminated, even though filing a charge is normally covered activity under the “participation” clause. See Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004). In Mattson, the employer concluded that the plaintiff had manufactured a false EEOC charge against his supervisor in an admitted bad faith effort to get her fired. Id. at 888. So, it fired Mattson for allegedly filing the bogus EEOC charge in bad faith. Mattson sued, claiming retaliation. Mattson argued that an employer may never fire an employee for filing an EEOC charge, regardless of whether it was filed in good or bad faith. The Seventh Circuit disagreed, stating that the charge was not protected because it was “not only unreasonable and meritless, but also motivated by bad faith.” Id. at 892. The court emphasized that this was a rare case, and that its holding was narrow and limited. Id. However, in dicta, the court did state that it believed that the “good faith reasonableness” requirement of the oppositional clause – meaning that to be protected, such claims must be made in good faith and be objectively reasonable – applied to the participation clause too. Id. In other words, according to Mattson, an employee who files an EEOC charge without a good-faith and reasonable basis for doing so, has not engaged in protected activity under the participation clause.

Contrary to the Seventh Circuit, most courts have not imposed a “good faith reasonableness” rule on participatory activity. The leading case taking an opposing view is Pettway, 411 F.2d at 1007. In Pettway, the Fifth Circuit U.S. Court of Appeals noted that the EEOC complaint procedure was designed to give vulnerable employees the ability to protest unjust employment practices against their much more powerful and resourceful employers without fear of reprisal. Id. at 1005. Moreover, it reasoned that this protection against retaliation would “acquire [ ] a precarious status” if employers were entitled to discipline employees upon determining that an employee’s charge was unreasonable. Id. In addition, it emphasized the fact that charges are typically drafted by the legally uneducated, and thus should be given special leeway. Id. Given these and other considerations, the Court ultimately declined to make the protections given to an EEOC charge contingent on the contents of that charge, and held that such a charge would be protected even if it contained false, and/or malicious content. Id. at 1007. Thus, the Pettway court declined to read a good-faith and reasonableness requirement into the protections afforded to the participation clause.

A majority of courts that have considered the issue have been sympathetic to the Pettway rule. See, e.g., Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (“As for the participation clause, ‘there is nothing in its wording requiring that the charges be valid, nor even an implied requirement that they be reasonable.’”) (quoting 3 Arthur Larson & Lex K. Larson, Employment Discrimination § 87.12(b), at 17–95 (1994)); Slagle v. County of Clarion, 435 F.3d 262, 268 (3rd Cir. 2006) (“Once a plaintiff files a facially valid complaint, the plaintiff will be entitled to the broad protections of § 704(a), as interpreted by the EEOC and by numerous courts . . . the EEOC Compliance Manual states that a plaintiff is protected under the participation clause ‘regardless of whether the allegations in the original charge were valid or reasonable.’”); Johnson v. University of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (“The exceptionally broad protections of the participation clause extends to persons who have participated in any manner in Title VII proceedings . . . Protection is not lost if the employee is wrong on the merits of the charge . . . nor is protection lost if the contents of the charge are malicious or defamatory as well as wrong.”); Glover v. South Carolina Law Enforcement Division, 170 F.3d 411, 414 (4th Cir. 1999) (“Reading a reasonableness test into section 704(a)’s participation clause would do violence to the text of that provision and would undermine the objectives of Title VII.”); Booth v. Pasco County, Fla., 829 F. Supp. 2d 1180, 1201 (M.D. Fla. 2011) (“For the above reasons, this Court declines to read a good faith and reasonableness requirement into the participation clause.”).

There are, however, still some generally agreed limits on protection for activities under the participation clause. One, for example, involves the situation where an employee files a facially defective EEOC charge of discrimination that really has nothing to do with any protected characteristic. In Slagle v. County of Clarion, 435 F.3d 262 (3d Cir. 2006) the plaintiff-employee filed an EEOC charge stating that “the Respondent discriminated against me because of whistleblowing, in violation of my Civil Rights, and invasion of privacy.” Id. at 263. The EEOC notified the employee that it dismissed his charge because “the facts [he] alleg[ed] failed to state a claim under any of the statutes enforced by the Commission.” Id. The employee was later fired, and sued for retaliation. The Third Circuit Court of Appeals rejected his claim that his EEOC charge constituted protected participatory activity, stating: “[a]ll that is required [to be protected under the participation clause] is that plaintiff allege in the charge that his or her employer violated Title VII by discriminating against him or her on the basis of race, color, religion, sex, or national origin, in any manner. Slagle did not do so, and therefore he cannot assert a claim for retaliation for filing that charge.” Id. at 268.

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