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Forwarding Complaint Email may be Protected Activity Under Title VII


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By Patrick Ogilvy

A U. S. district court in Illinois has held that the act of forwarding a complaint email to a supervisor may, in certain circumstances, constitute protected activity, which can give rise to a Title VII retaliation claim.    

Complaint emails
A warehouse manager for a satellite television installation company generally had the authority to orally discipline her subordinate employees, but had to obtain approval from her supervisor to formally write up an employee.  However, after one of her subordinates, who had been terminated for falsifying numbers, was reinstated after a union arbitration, the warehouse manager was told she could no long discipline this particular associate in any manner, but could only document the employee’s conduct.    

Soon after the employee returned to work, the warehouse manager learned the employee had been spreading rumors about the warehouse manager flirting and sleeping with a male employee.  The employee had tried to spread such rumors in the past, so the warehouse manager sent an email to her supervisor to advise him of the subordinate’s conduct.

Less than a week later, the warehouse manager received a lengthy email from a male employee with the subject line “A formal complaint.”  In the email, the male employee complained the reinstated employee, who was female, had been making lewd comments towards him, discussing their personal lives, including references to “bedside” matters, flirting with him, and engaging in sexually-related conversations about what the female employee would like to do with him.  The male employee also wrote that he believed the female employee was a troublemaker, summarizing her conduct as “high school drama.”  The next day, the warehouse manager forwarded the email without comment to a regional manager and to the installation company’s human resources director.

A few days later, the human resources director sent a memo to the company’s management advising them of her plan to terminate the warehouse manager and her supervisor.  Soon after, another employee submitted a memo criticizing the warehouse manager for a large number of inventory discrepancies in the warehouse.  

Thereafter, the company terminated the warehouse.  On the termination notice, the human resources director explained the company required a more positive leadership role from a warehouse manager.  She specifically, cited the emails and employee memo to show the warehouse manager’s leadership did not meet those expectations.  The warehouse manager then sued the company for retaliation under Title VII.

Basis for retaliation
The court considered whether the warehouse manager had engaged in any protected activity for which the company may have retaliated against her in violation of Title VII.  First, the installation company argued the warehouse manager’s complaint about the female employee spreading rumors could not support any retaliation claim because no one could conclude the subordinate’s conduct was unlawful under Title VII.  The court disagreed, explaining the warehouse manager had reported a regular course of conduct by the female employee, and the rumors allegedly spread by that employee sought to demean the warehouse manager in a sexual manner.

Second, the company argued the email forwarded by the warehouse manager could not be considered protected activity under Title VII.  That ministerial action could not constitute participation in or assistance to the male employee in his complaint about the female employee’s conduct.  Although the court agreed that, in some contexts, simply forwarding an email may be too passive to constitute statutory “opposition” to invoke Title VII’s protections against retaliation, here the warehouse manager’s actions could constitute opposition to arguably unlawful conduct.  

The company had made it clear to the warehouse manager she could not discipline the female employee.  As such, it was reasonable for the warehouse manager to believe the only way she could assist the male employee in complaining about the female employee was to forward his email to upper management and human resources to make them aware of the problems and to await their guidance.  Accordingly, the court found that by forwarding the male employee’s email complaining about alleged harassment was protected activity supporting the warehouse manager’s Title VII retaliation claim.


Takeaway
Any time an employer receives a complaint about harassing or discriminatory behavior, regardless of the form of the complaint, the employer should be wary in how it treats the employee providing the complaint.  As this case demonstrates, even the most passive involvement could potentially support a retaliation claim.

Read the case here.

 

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