For retaliation purposes, discrimination is in the eye of the beholder

Silhouette shadows of business people talking in office

Many employers know Title VII of the Civil Rights Act of 1964 broadly provides protection against discrimination and harassment based on protected categories such as race, sex, national origin, and religion. It is also widely understood that employers cannot take adverse actions against employees who report conduct that violates the statute. However, it is important to know that Title VII may protect employees who report incidents they believe to be unlawful, but which are not actually protected by federal law. Under new Tenth Circuit authority, that bar was just lowered.

The Tenth Circuit Court of Appeals – the federal appellate court that covers Oklahoma, Colorado, Kansas, Utah, New Mexico and Wyoming – recently adopted the “objective reasonableness” standard for determining whether complaints of activity can satisfy Title VII’s anti-retaliation provision. In short, when an employee reports behavior that the employee reasonably believes violates Title VII, he or she may receive protection under Title VII’s anti-harassment provision, even if the underlying conduct was not illegal. What matters, under the Tenth Circuit’s approach, is whether the employee had an objectively reasonable belief that the complained of actions violated Title VII.

Court’s “objective reasonableness standard” allows retaliation claim to proceed

Title VII’s anti-retaliation provision bars an employer from discriminating against an individual who has “opposed any practice made an unlawful employment practice” by the statute. In Reznik v. inContact, Inc., the Tenth Circuit reinstated an employee’s Title VII retaliation claim in which she claimed she was terminated for reporting that a manager in the company’s Utah headquarters repeatedly subjected two workers in the company’s Philippines office to racial slurs and other harassing language. The plaintiff alleged that she had reported the repeated racially abusive language to management and was terminated a few weeks later. At issue was the fact that Title VII does not protect non-citizens working abroad. Consequently, the alleged racially abusive language could not, as a matter of law, violate Title VII. The federal district court in Utah dismissed the action finding that the plaintiff could not show a reasonable belief that her reports were opposing unlawful conduct under Title VII.

On appeal, the Tenth Circuit reversed. It rejected the “substantive law approach,” which focuses on whether the underlying conduct was actually illegal—proposed by the employer and adopted by some other federal courts. It adopted the “objective reasonableness standard,” which “considers the law against what a reasonable employee would believe, not ‘what a reasonable labor and employment attorney would believe.’” Under this standard an employee may receive protection for reporting conduct that he or she believes violates Title VII, if that belief was reasonable when taking into consideration what a reasonable employee would understand about the law and believe in the same or similar circumstances. In other words, a court will review the reporting employee’s belief based on how it believes a reasonable person in that employee’s place would understand Title VII’s protections under the same factual circumstances, with the same training, and same experience.

Implications and practice tips for employers

The Tenth Circuit’s opinion certainly carries the threat of expanded Title VII litigation. Employers cannot necessarily rely on the fact that any underlying conduct is unprotected as a quick exit from a retaliation suit. If the complained of conduct is significantly similar to conduct protected by Title VII, there appears to be a good chance that retaliation claims premised on reports of such conduct will survive. So, what should employers do in response to this opinion?

As in most cases, being proactive is the best solution. Employers should ensure their policies and procedures are updated and properly disseminated. Additionally, conducting appropriate training for employees and management can help diffuse situations before they lead to potentially costly litigation. Given the language from Reznik, employers may consider alterations to their policies and training that expressly identify Title VII’s exceptions and illustrations of what would fail to be considered harassment under the law. The more educated a workforce is on what is and what is not illegal under Title VII, the better argument an employer would have against an expanded scope of Title VII’s retaliation provision.

Reznik v. inContact, Inc., 18 F.4th 1257 (10th Cir. 2021).