A white employee complains in writing that a colleague called his biracial grand-niece a “monkey” and texted him racially offensive comments about his coworkers. Within months, the employer fired the complainant.
Is this retaliation?
A federal court in Pennsylvania said no.
It reasoned that while Title VII of the Civil Rights Act of 1964 prohibits retaliation against an employee who opposes an “unlawful employment practice,” the plaintiff’s report did not concern an unlawful employment practice. Rather, he complained about a co-worker making a racist comment and texts about others. While the employee was right to report these offensive actions, he did not oppose an unlawful employment practice.
So, the plaintiff appealed.
And that got the attention of the EEOC, U.S. Department of Justice, and various chapters of the National Employment Lawyers Association, all of which filed briefs with the Third Circuit Court of Appeals in support of the plaintiff.
The argument went something like this. Title VII forbids employers from retaliating against employees who complain in good faith about behavior that they reasonably believe violates the status. That includes harassing a white employee who associates with a person of another race, such as a family member, which could conceivable progress to a hostile work environment if left unchecked — as long as the behavior is not so minor or isolated.
On the merits, we agree with our sister circuits that associational discrimination is well grounded in the text of Title VII. In a practical sense, the name is a misnomer because, when you discriminate against an employee because of his association with someone of a different race, you are in effect discriminating against him “because of [his own] race” in violation of Title VII.
While this doesn’t necessarily mean that the plaintiff was subjected to a hostile work environment — he didn’t assert that claim anyway — the conduct at issue was serious enough to where a reasonable employee in the plaintiff’s shoes would have believed that his work environment was hostile. And, thus, he had a good faith basis to complain.
Will the plaintiff eventually win? Unclear.
The employer will argue that it did not fire him for complaining. Supposedly, the plaintiff told two subordinate officers to lie on their reports during a separate investigation of a sexual harassment complaint.
But, the point here is that complaining about associational discrimination can lead to a viable claim of retaliation.