Second Circuit Rules Employee Protected from Retaliation for Investigating Harassment at Another Entity
Title VII of the Civil Rights Act of 1964 provides that an employer may not retaliate against any of its employees because they have filed a charge under Title VII, have opposed any practice made unlawful under Title VII, or have participated in any manner in a Title VII investigation, proceeding, or hearing. The U.S. Court of Appeals for the Second Circuit in New York recently adopted a broad interpretation of Title VII's non-retaliation provision and ruled that the statute protects an employee from retaliation by his own employer for his investigation of a harassment complaint at another employer. McMenemy v. City of Rochester, 2001 U.S. App. LEXIS 3243 (2nd Cir. March 2, 2001). The Court ruled that these activities are protected even when the unlawful practice opposed by the employee involved an employer other than his own.
The plaintiff was a Rochester, New York fire lieutenant. In December 1992, the fire chief told him he would be promoted to captain the following spring. The plaintiff was also treasurer of his union. In January 1993, a secretary employed by the union (not by the city) told the plaintiff that the president of the union had sexually harassed her. The plaintiff investigated the allegation.
The following month, the plaintiff told the fire chief of the investigation. The fire chief -- "a friend, ally, and supporter" of the accused union president -- scolded the plaintiff for not informing him earlier. Later that spring, the promotion was awarded to another employee instead of the plaintiff. The fire chief told the plaintiff, "With all the things going on right now, I don't think you're qualified."
The plaintiff sued. Among other allegations, the plaintiff accused the city of violating Title VII and the New York Human Rights Law by retaliating against him for his investigation of the secretary's complaint. The city responded that the investigation was not "protected" by Title VII's prohibition of retaliation because the investigation occurred at another employer, for which the plaintiff did not even work.
The trial court agreed with the city and dismissed the action but, on appeal, the Second Circuit reversed. The Court of Appeals reasoned that the plain language of Title VII does not support the limitation on the scope of the non-retaliation provision urged by the city. The Court noted that the provision broadly prohibits retaliation against an employee who has "participated in any manner in an investigation, proceeding, or hearing" under Title VII; it does not stipulate that the investigation, proceeding or hearing must have involved the plaintiff's own employer. Thus, the Court adopted the interpretation of the non-retaliation provision previously espoused by the Equal Employment Opportunity Commission, under which an individual "is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity."
The Court added that such retaliation claims are especially appropriate where, as with the city and the union, the two employers have a relationship that may give one of them an incentive to retaliate for protected activities involving the other. According to the Court, it is necessary to allow such claims in order to promote the primary purpose of the retaliation clause: "maintaining unfettered access to [Title VII's] remedial mechanisms."
Finally, the Court observed that the U.S. Supreme Court has taken a broad view of Title VII's non-retaliation clause, ruling that former employees are protected from retaliation by a former employer for protected activities they pursued while still employed. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997).
It is relatively uncommon for employers to learn of protected conduct engaged in by an employee involving another entity, such as a prior employer. In some industries, however, where employees tend to work for several different employers in the field over the course of their careers, it is not at all unusual for an employer to learn through the grapevine or through references of an employee's protected activity elsewhere. An employer who learns of such activity must proceed with caution in any refusal to hire or other adverse employment action. Just as an employee is protected from retaliation by reason of his opposition to what he believes to be his own employer's unlawful practices, he is likewise protected, under McMenemy, against retaliation for such conduct involving a predecessor or unrelated employer.