Marching Orders: Legal Conduct, Protected Opposition


 

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A Different Drum

Captain Walter Busby has been a member of the Tulsa Police Department for 35 years, and has long served on the board that organizes the city’s Martin Luther King Day parade. Until 2010, though, Busby had never worn his TPD uniform during the parade or marched alongside other members of the force. He didn’t think the department had made enough progress concerning race relations.

After winning a recent case against the city of Tulsa, though, Busby has found relief for conduct that, while legal, he perceived to be an injustice. His case demonstrates how, under Title VII, an employer can still be liable for retaliation against an employee who complains about discrimination—even when the conduct objected to doesn’t violate Title VII.

The Order to March

Just before the 2010 parade, a major, and fellow member of the Black Officers’ Coalition, gave Captain Busby an order to march alongside TPD in that year’s parade, following a conversation that involved race. The city disputes that the order was racially motivated, but Busby was the only black captain under the major and the only captain ordered to march. Regardless, after making his opposition known, and submitting a leave request, which was denied, Busby marched in the parade.

Despite reluctant participation, Busby started experiencing negative repercussions soon after the parade. He received a “needs improvement” evaluation from the major who ordered him to march. He was then moved from his usual day shift to one ending at midnight, and consequently had to use more leave time to see his family. Eventually, after having two hours of requested leave denied, he sued the city of Tulsa for disparate treatment and retaliation.

Protected Opposition

Last month, a district court found that the order to march and denial of Busby’s leave were only a “mere inconvenience,” holding that, absent a significant change to his employment, neither of these actions had violated Title VII. However, the court also determined that the major’s negative evaluation of Busby, and the change in his shift, were unlawfully carried out in retaliation for Busby’s protected opposition to marching.

An employee doesn’t have to file formal charges to engage in protected activity—even voicing complaints to a supervisor can be enough. And even more importantly, an employee only requires a good faith belief that an employer’s conduct is illegal for a complaint to be protected. It didn’t matter that the order to march wasn’t a Title VII violation; since a reasonable employee would have found a negative review and shift change to be both materially adverse and connected to protected complaints, Busby won his case.

It’s uncertain whether the court’s holding will help heal the rift within Busby’s department that led to his filing suit, but in providing some of the relief he sought, his case illustrates the far-reaching scope of civil rights law.

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