Sixth Circuit Says Complaints to Harassing Supervisor Constitute Protected Activity

Employers in the technology industry should take note of last week’s decision by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. New Breed Logistics (PDF).  The court declined to reconsider a panel holding that, in the context of a retaliation claim, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity under Title VII.”

Three former employees of New Breed Logistics, a supply-chain logistics company, asserted that they had engaged in protected activity by telling their supervisor to stop making advances and sexual comments.  The district court agreed, holding that protected conduct “can be as simple as telling a supervisor to stop.” The Sixth Circuit (PDF) affirmed, relying on the EEOC’s interpretation of Title VII’s opposition clause and finding that an oral complaint to a harassing supervisor – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity.

The employer moved for a rehearing en banc, arguing that the Sixth Circuit’s decision created a split with the Fifth Circuit, which in 2004 had held that a single express rejection to a harassing supervisor did not constitute protected activity.  The employer also argued that an employer should not have to face a retaliation claim if the only person to have received the complaint was the alleged harasser.  In denying the motion for rehearing, however, the Sixth Circuit found that these issues were fully considered in the court’s original decision.

The Sixth Circuit’s decision highlights the need for an employer to train its workforce on its complaint procedures.  Although employees may engage in protected activity by orally rejecting a harassing supervisor’s advances – at least in the Sixth Circuit and in the eyes of the EEOC – they should be made aware of all avenues of complaint so that the employer has an opportunity to learn of and address the complaint.  Importantly, supervisors must be trained on how to handle any such complaints and to report them to human resources.