In a recent Fourth Circuit case, Owen v. County of Franklin, the court answered the question of whether a person who rejects a supervisor’s sexual advances has engaged in “protected activity” under a Title VII retaliation claim. The court’s decision expanded the definition of “protected activity” under Title VII, and employers should familiarize themselves with what this could mean for them.
In December of 2013, the County of Franklin, Virginia hired Jennifer Owen to work as a building inspector. Robert Morris became the County Building Official and Owen’s supervisor in November of 2014. Within months of becoming Owen’s supervisor, Morris began to sexually harass her. The harassment included comments regarding the Owen’s attractiveness, made in person and in text messages; asking Owen sexually explicit questions; discussing his own sexual experiences in detail; and making sexual advances via text message, including requests for Owen to send him inappropriate photographs of herself and offering to perform oral sex on Owen.
In the summer of 2015, Morris began to engage in inappropriate physical contact, including touching Owen’s breasts on several occasions, forcing Owen to kiss him, trying to force her to touch him sexually, and placing his hand on her genital area while she was driving. As, the year progressed, Owen’s work environment worsened, and she began to fear that Morris would hurt her or terminate her employment. Morris advised Owen that she would be immediately fired if he ever saw her go near the human resources department. In November of 2015, Owen made it clear that she was not going to tolerate Morris’ behavior any longer. While Owen was sitting at her desk, Morris approached her from behind, placed his hands down her shirt and under her bra. In response, Owen slapped her fist on the desk and said, “That’s it . . . You’re going to stop touching me now. No more. Leave me alone. Stop.”
After this, Morris’ demeanor towards Owen allegedly changed. On February 5, 2016, Morris met with Owen and presented her with a list of alleged reasons to terminate her employment. Morris advised Owen that she could either quit or be fired. On February 10, 2016, Morris terminated Owen’s employment. In a Notice of Termination issued that same day, Morris advised Owen that the employment decision was based on abuse of County time for personal business, insubordination or failure to follow a supervisor’s instructions, leaving the work site during work hours without permission, and unauthorized use or misuse of County property.
Owen filed this action against the County and Morris, asserting claims of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964 against the County, and related claims of assault and battery against Morris. The County moved for summary judgment on the retaliation claim.
Under Title VII, it is unlawful for an employer to retaliate against an employee because the employee has opposed any unlawful practice (the “opposition clause”) or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Title VII (the “participation clause”). To establish a prima facie case of retaliation, a plaintiff must show (1) that she engaged in protected activity; (2) that her employer took a materially adverse action against her; and (3) that a causal connection existed between the protected activity and the materially adverse action.
Here, the County focuses exclusively on the first element, arguing that Owen did not engage in a protected activity by rejecting Morris’ advances and asking him to stop his harassment. However, the court pointed out that due to the broad definition of “opposed,” the threshold for oppositional conduct is not onerous. The court also noted that oppositional conduct includes “utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”
The court ultimately decided that an employee engages in protected activity when the employee asks a supervisor to stop his sexually harassing behavior, finding that conclusion in line with the plain language of the opposition clause and the expansive view of what constitutes oppositional conduct. The court stated that the facts as Owen alleged, if true, were sufficient to constitute protected activity under Title VII.
What Does This Mean for Employers?
The court’s decision in this case expanded what is considered “protected activity” in a Title VII retaliation case. Here, the court made clear that either a formal or informal complaint is not required for a plaintiff to have undertaken a “protected activity.” If an employee asks a supervisor to stop any sexually harassing behavior, this is likely sufficient under the court’s ruling to constitute “protected activity,” and subsequent termination because of that action could lead to liability for a claim of retaliation under Title VII.
It should be clear that employers should avoid conduct that could be construed as “sexually harassing behavior” towards employees. In addition, employers should take care when terminating employees who may have been subject to such harassing behavior, to ensure that the termination could not be considered retaliation. This case makes clear that if an employee has been subject to such behavior and has asked the alleged harasser to stop the harassing behavior, whether or not the employee has formally or informally complained about the behavior to the appropriate department, the employer may still open itself up to liability under Title VII for subsequently terminating the employee.
If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 202-360-4230. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.