'Reasonable Belief' Test Applies to Passive Bias Reports

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Patrick Dorrian

April 11 — An employee disciplined after being asked about suspected workplace bias must have reasonably believed the alleged misconduct violated federal law to have a retaliation claim, the U.S. Court of Appeals for the Fifth Circuit held on a novel issue.

The same “reasonable belief” test that applies to workers who proactively complain of job discrimination also applies to employees who simply respond to employer inquiries about suspected bias, the appeals court ruled April 8.

It rejected the Equal Employment Opportunity Commission's argument that a lesser standard should apply in “reactive” opposition cases brought under Title VII of the 1964 Civil Rights Act's retaliation provisions.

The court nevertheless revived the EEOC's claim on behalf of Mekeva Tennort against Mississippi janitorial services contractor Rite Way Service Inc. It found questions of fact on whether Tennort reasonably believed a supervisor sexually harassed a co-worker when she heard him make a statement suggesting he was looking at and admiring the co-worker's rear end.

The ruling is important because it addresses an issue that hasn't really come up before, management-side attorney Eduardo F. Cuaderes Jr. told Bloomberg BNA April 11.

Moreover, it's useful to employment discrimination practitioners because it simplifies the test for analyzing Title VII opposition claims and rejects the EEOC's call for two different standards, said Cuaderes, who is with Littler Mendelson P.C. in Dallas.

Supreme Court Hasn't Addressed Issue

Judge Gregg Jeffrey Costa noted for the Fifth Circuit that the U.S. Supreme Court decided in Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271, 105 FEP Cases 353 (2009), that bias complaints or reports “solicited” by an employer, as opposed to those initiated by an employee, “could amount to ‘opposition' ” conduct under Title VII.

But the justices didn't address in Crawford the “reasonable belief” standard with regard to “passive” reports of job bias. In fact, the Supreme Court has never taken a position on the reasonable belief test, even in traditional, proactive witness cases, Costa said.

However, the reasonable belief standard has long been the rule in the Fifth Circuit—and in every federal circuit that has addressed the question—in proactive witness cases, Costa said. That's because to prove retaliation under Title VII's opposition clause, he said, an employee must show her activity opposed a job practice made unlawful by the statute.

In arguing that a different standard should apply to passive or reactive witnesses like Tennort, the EEOC cited the fact that, in recognizing retaliation claims for such witnesses, the Supreme Court in Crawford never mentioned the reasonable belief standard.

“The EEOC’s argument makes too much of the absence of a discussion of reasonable belief in Crawford,” Costa wrote.

He said the Crawford decision was confined to the narrow issue of “whether passive reporting could ever” be Title VII opposition. Applying a lesser test for reactive/passive witnesses actually “would be at odds with Crawford’s reasoning that the language of the opposition clause does not permit courts to treat reactive opposition any differently than proactive opposition,” Costa said.

The court also found that the EEOC didn't make clear what alternative standard should apply to passive/reactive witnesses. Moreover, the policy arguments the agency advanced in favor of a lesser threshold for passive witnesses can and also have been made about proactive bias complainants, the court said.

Jury Must Hear EEOC's Claim

But that didn't mean the U.S. District Court for the Southern District of Mississippi's grant of summary judgment dismissing the EEOC's lawsuit on behalf of Tennort was proper, the Fifth Circuit ruled.

It said “[e]veryone agrees” that supervisor Willie Harris's comment to Tennort's fellow janitor Linda Quarles that he noticed a cell phone in Quarles's back pocket because her pants were tight and “I'm a man, I'm gonna look” wasn't severe or pervasive enough to meet Title VII's legal standard for proving sexual harassment. However, a jury could conclude that Tennort reasonably believed otherwise, the court said.

Costa noted that regular employees like Tennort aren't experts on sexual harassment law. Moreover, the “context” in which Harris's comment was made and the “setting” in which Tennort voiced her complaint could lead a jury to find in her favor, the court decided.

A week before the “I'm a man, I'm gonna look” comment, Tennort witnessed Harris pretend to slap Quarles's buttocks and declare “ooh wee,” the court recounted. Tennort never reported that incident, but it's still relevant to her perception of possible sexual harassment, the court said.

The setting of Tennort's conversation about Harris with Rite Way “is where the reactive nature of Tennort’s complaint sets it apart from the more common proactive opposition case,” Costa found. He said Tennort had received training to report workplace harassment, yet when she was interviewed by a human resources representative at Rite Way's request, she said the HR representative insinuated that the company didn't want her to corroborate Quarles's version of events.

“If Tennort had not yet reached a view that Harris violated federal employment law when he made offensive comments and gestures about Quarles’s rear end, the circumstances surrounding her questioning may very well have caused her to do so,” the Fifth Circuit wrote.

After her meeting with Rite Way, Tennort subsequently received two written warnings and up to two oral warnings for her job performance, the court said. She was terminated after receiving a third strike, it said.

EEOC Pleased Case Revived

In an April 11 statement provided to Bloomberg BNA, the EEOC focused on the Fifth Circuit's revival of its retaliation claim rather than the court's ruling on the reasonable belief standard.

“We are pleased that the Fifth Circuit ruled for the EEOC in this appeal, and that a jury will have an opportunity to decide the merits of the EEOC's claim that Rite Way unlawfully retaliated against Mekeva Tennort after she corroborated a co-worker's sexual harassment complaints,” the agency said.

Andrea Kiehl, general counsel and chief compliance officer with Diversified Maintenance Systems LLC in Tampa, Fla., told Bloomberg BNA in an April 11 statement that “Rite Way Service, Inc. is no longer an operating entity.”

She said the Fifth Circuit's ruling involves allegations against Rite Way from 2011. “The assets of the former company were purchased by Diversified Maintenance Systems, LLC in 2014, and Diversified operates under a new management team” Kiehl said.

Judges Edith Brown Clement and James E. Graves Jr. joined the opinion.

EEOC attorneys in Washington represented the commission. Rachel V. Barlotta in Birmingham, Ala., and Zachary B. Busey in Memphis, Tenn., both of Baker, Donelson, Bearman, Caldwell & Berkowitz P.C., represented Rite Way.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com