Title VII retaliation: the cover-up is worse than the crime

A Southern District judge has ruled -- apparently for the first time -- that an employer in a discrimination case cannot avoid liability in arguing that it erroneously thought the employee was complaining about discrimination in bad faith. While the employer may claim that its erroneous belief proves that it did not maliciously retaliate against the plaintiff, the values promoted by the anti-retaliation laws override that defense.

The discrimination laws mean very little if an employer can retaliate against an employee for complaining about discrimination. This is why nearly all anti-discrimination laws contain a built-in retaliation prohibition. Without the anti-retaliation protection, the employee may win the battle (the underlying discrimination dispute) but lose the war (getting fired). The only hitch is that the employee must raise his discrimination complaint in good faith. The anti-retaliation provisions do not protect an employee who tries to save his job by raising a frivolous discrimination claim.

In Sanders v. Madison Square Garden, 2007 U.S. Dist. LEXIS 65309 (S.D.N.Y. Sept. 4, 2007), Judge Lynch considered the question of whether the employer can win the case by showing that it punished the employee because it (erroneously) thought she raised her discrimination complaint in bad faith. In Sanders, the employer argued that this evidence means that it did not act with an unlawful motive. On a motion for summary judgment, Judge Lynch agreed with the employer, rejecting the plaintiff's retaliation claim. But on the plaintiff's motion for re-argument, the Court changed its mind, stating, "On reflection, the Court finds that this was a mistake."

When was the last time we saw this kind of mea culpa? Motions for re-argument are rarely granted in any court. That would require the court to acknowledge that it made an error. I would imagine that, when presented with a strong motion for re-consideration, the judge takes a few walks around the block and really thinks it over. After Judge Lynch wandered around the neighborhood surrounding the Federal courthouse in lower Manhattan, he returned to his office and issued a new ruling. This is what he said:

Judge Lynch reminded us that the following elements make out a retaliation claim: the "plaintiff must show that: (1) she engaged in a protected activity; (2) defendant was aware of that activity; (3) she suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action." Although the employer may think the plaintiff complained of discrimination in bad faith, the fact remains that the employee still "engaged in protected activity." Judge Lynch reasoned (italics mine):

This is not just a matter of too close a verbal parsing of language in court opinions. There is a good reason why this is so. Contrary to what the Court indicated in the summary judgment opinion, if an employer fires an employee because he believes her otherwise-protected activity opposing alleged sex discrimination amounts to extortion or obstruction of justice, this is not a firing for a reason distinct from her oppositional behavior. On these assumptions, if the employer's "knowledge" of the employee's conduct actually "influence[s] the manner and timing of" the employee's discharge, the employer is in fact firing the employee because of the employee's protests, and not for some other reason.

If an employer were permitted to fire employees who protested alleged illegal discrimination, simply because the employer believed the complaints were unfounded or malicious, the employees' protection would be illusory. Employers could easily make false claims that they disbelieved in the employees' good faith. But it is not just a question of possible false defenses. Undoubtedly, many employers do in fact believe that employees' complaints of discrimination are completely without merit. But the law requires the employer to tolerate such complaints, and not to retaliate because of them. So long as the employee in fact acts in good faith when she brings a discrimination complaint, she is absolutely protected against retaliation for her complaint, even if the employer's alleged conduct does not actually violate Title VII. She only loses this protection if she is in fact acting in bad faith. Although employees who make up false complaints of discrimination are not protected by the act, if an employer chooses to fire an employee for making false or bad faith accusations, he does so at his peril, and takes the risk that a jury will later disagree with his characterization.

This language represents a ringing endorsement of the policies underlying the anti-retaliation clauses of most employment laws. Message to the employers: as the cover-up is often worse than the crime, punish the complaining employee at your own risk.