IS “NO” ENOUGH
Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?
The factual scenario out of which this question arises is one that occurs regularly in every workplace. One individual tells another to “stop,” “leave me alone,” “I don’t want to hear that,” or that “you will get in trouble.” Are such statements alone enough to constitute “opposition” if the conduct which elicits them maybe be violative of Title VII? The answer to this question has divided the courts which have confronted it.
Recently, the Sixth Circuit in the Court of Appeals answered this question with regard to similar statements and actions made in response to a supervisor’s sexually suggestive comments and touching. In EEOC v. New Breed Logistics, (6th Cir. 2015) the Court was confronted with these types of statements made by both the target of and witness to a supervisor’s sexually harassing conduct. To answer the question, the Court looked to the ordinary meaning of the term “oppose,” since that term is not defined by the Title VII. The Court held that “oppose” meant to resist, antagonize, contend against, or withstand. Since the opposition clause does not specify to whom the protected activity must be addressed, the Court further held that it does not matter whether such protests about the unlawful activity were made to management, the union, other employees, or even a third party (newspaper). It reached this conclusion in light of the fact that it found that the protections afforded by the opposition clause would be undermined if those protections only were triggered by a complaint to an officer specifically designated by the employer. Thus, the act of saying “No” –rebuffing sexual harassment— in and of itself can be opposition to an unlawful practice and protected against retaliation.
In reaching this conclusion, the Sixth Circuit acknowledged that its decision was inconsistent with decisions of both the Fifth Circuit and the Southern District of New York. Those courts have held communications directed solely to the harassing supervisor do not constitute protected activity, fearing that such a broad interpretation of the Title VII would convert all rebuffing of offensive conduct into retaliation claims. The Sixth Circuit refused to follow these decisions because the latter claims do not come into existence without some form of adverse action subsequently being taken against the protestor.
In light of New Breed Logistics, it can fairly be said that “No” not only means “No,” but that “No” is enough to offer protection against retaliation.