Protected conduct “can be as simple as telling a supervisor to stop.”

When I think about retaliation, I think about that time I plastic-wrapped the judicial toilets after losing a motion to compel an employee who gets fired after complaining about discrimination to an HR Manager or the EEOC. These actions epitomize the “opposition” and the “participation” clauses of Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute.

By what about when an employee doesn’t go to HR, doesn’t complain to the EEOC, but, instead, simply tells a supervisor to stop sexually harassing her? If that employee is later fired, and she can establish that she was fired because she told her supervisor to stop, is that a winning retaliation claim?

Well, hold up one second. As you wait for the answer with bated breath, holler at me if you missed your opportunity earlier this week to get a copy of my presentation: “The Wild, the Weird and the Wonderful FMLA/ADAAA Cases…And the Lessons for Employers!

And now, to the Sixth Circuit Court of Appeals for the answer, which is yes. The answer is yes:

We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct.

So, will this decision open the retaliation floodgates? Prolly not. Because a plaintiff in a retaliation case still has to prove but-for causation; i.e., her “check yo-self before you wreck yo-self” actually caused her to get fired. So, where an employee complains to a sexual harasser, but gets fired for completely independent reasons (e.g., bad performance), that’s not retaliation.

Still, this decision is a nice wake-up call for employers to train employees that, in addition to telling a workplace harasser to knock it off, go to another supervisor and HR, and complain. That way a company can address a single event of harassment before it results in — well — a lawsuit.

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