I’m not done with yesterday’s post yet. You need to hear about the retaliation claim!

On Wednesday, I blogged about a woman who worked as a “helper” for a construction company. She alleged that she had to endure misogynist comments from her general manager, who told her in front of others that, since she had “t*** and an a**,” she could not perform certain functions of her job that would otherwise position her for advancement within the company.

But that isn’t the half of it.

The plaintiff sued for more than just disparate treatment based on her sex. She alleged retaliation too.

The comments about the plaintiff were not limited to her perceived inability to perform her job. So, let’s talk about the other crude behavior she allegedly endured. According to the plaintiff:

• The general manager, who allegedly made the “t*** and an a**” comment regularly, also said (in the plaintiff’s vicinity) that he needed “a bucket of b***jobs.”
• Another manager allegedly texted the plaintiff a picture of his junk (that’s slang for “genitals”) and asked her to send back a picture of her breasts. This request allegedly left the plaintiff “upset,” “distraught,” and “in shock.” The manager then doubled down with comments that it took “guts to send that” picture to her.
• On several other occasions, the manager asked to “grab and squeeze” her breasts.
• Another co-worker commented to the plaintiff that she was in her “sexual prime” right before he approached her from behind and began grabbing and massaging her shoulders.

Among other things, the plaintiff claimed that the defendant retaliated against her for complaining.

Title VII forbids retaliation as a form of sex-based discrimination. To establish a retaliation claim, the employee must show, at least, that she participated in an activity protected by Title VII.

Here, the plaintiff claimed that she engaged in protected activity when she complained about her general manager’s refusal to let her perform her job and the other sexually-harassing behavior I listed above.

An employee engages in protected activity when she opposes an employment practice that she “reasonably believes” violated Title VII.

Puzzlingly, the district court dismissed these claims because (1) her complaints about not working at elevation were only ‘general gripes’ and were not specifically about her being a female, and (2) [the sexual prime comments and grab/massage] alone was not enough to give rise to a Title VII claim.

That quote came from the Fifth Circuit. So, WTH was the lower court thinking by granting summary judgment to the defendant? I’ll let the appellate court explain for us:

To start, the district court improperly resolved factual disputes in [the defendant’s] favor when it characterized [the plaintiff’s] complaints as “general gripes.” [She] testified that she specifically told [managers] that [the general manager] would not let her work at elevation ‘because [she] was a female.’ Thus, by complaining to her supervisors about not being afforded opportunities based on her sex, she engaged in protected activity in making these complaints. 

Ok, now what about the comments and gross touching?

The question is, based on the significant harassment that [the plaintiff] had endured up to this point, whether [she] ‘reasonably believed’ that [her coworker’s] comment (that she was in her “sexual prime”) and his nonconsensual massaging of her were enough to establish Title VII liability. We have said that sexual remarks and intimate contact make harassment more severe, and thus even isolated incidents can amount to severe or pervasive harassment.

Thus, the plaintiff reasonably believed — twice! — that her employer had violated Title VII and, therefore, engaged in protected activity when she complained about it.

Folks, an employee does not need to use “magic words” like “discrimination” or hostile work environment” to complain about the types of behavior that Title VII prohibits. All the employee must do is alert an employer to the employee’s reasonable belief about unlawful discrimination. Once that happens, the law tasks the employer with taking steps that are reasonably designed to end the complained-of behavior.

Or mess around and find out, as the defendant did here.

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Are you registered yet for the next edition of The Employer Handbook Zoom Office Happy Hour on Friday, January 20, 2023, at Noon ET?

My special guest will be EEOC Commissioner Andrea Lucas. We will discuss the EEOC’s enforcement priorities, expound on some of her passions (including battling religious discrimination), and answer your hypothetical questions for a friend without giving any specific legal advice.

If not, click here(https://us02web.zoom.us/meeting/register/tZwvf–rqjkiH9bfR3tsk6OUWYt6eAga8r2W) to register.