A tenured professor in a university’s history department learns of “discrimination” and “marginalization” of Hispanic employees within the department. The university appoints him to an “Equity Committee” to address the problem. As part of his remediation efforts, the professor creates a “salary report” confirming instances of pay disparity among minority professors. He then circulates the report to colleagues and supervisors.
Will the professor have a viable retaliation claim if the university later takes against the professor because of the salary report?
To establish a retaliation claim, at a minimum, a plaintiff must show that he engaged in conduct protected by Title VII, suffered a materially adverse action, and there exists a nexus between the two.
We will focus on whether creating and sharing the salary report is a protected activity.
Protected activity under Title VII’s anti-retaliation provision can consist of opposing any unlawful employment practice. It can also amount to participating in an investigation.
The district court correctly noted that the professor’s creation of the salary report was not equivalent to participating in an investigation because it was an internal investigation (as opposed to an EEOC investigation). However, the lower court failed to consider whether the salary report could separately qualify as opposing any unlawful employment practice.
The Fifth Circuit Court of Appeals concluded that it did, as the creation of the Equity Committee was akin to soliciting complaints, and it tasked the professor with creating “a plan of action to help fix inequities” and “review[ing] equity broadly . . . .” The professor responded by developing the salary report to substantiate inequities in minority faculty compensation, “a natural outgrowth of empaneling the committee was its identifying perceived discrimination and proposing solutions.” Otherwise, the Equity Committee would be mere “empty window dressing.”
The university leaned out from the salary report, noting it was not specific to minorities and “merely focused on pay compression.” But, that argument didn’t jibe with the salary report’s creation in the context of the “Equity Committee’s” mission to address any pay disparity among minorities, which the report identified. Thus, a reasonable jury could find that the professor’s creation of the salary report was a protected activity.
Now, merely creating a report doesn’t mean the university discriminated against him. He’ll still need to show that any seemingly legitimate action the school may have taken against him was pretextual.
But the takeaway is that it only takes a little to manifest an employee’s opposition to discrimination in the workplace.