2d Circuit places a limit on Title VII retaliation claims

Over the years, the case law interpreting Title VII's anti-retaliation clause has been favorable to plaintiffs who suffer retaliation for opposing discriminatory actions and policies in the workplace. But all winnings streaks have to end sometime, and in the Second Circuit it ends with this case.

The case is Cooper v. New York State Department of Labor, decided on April 26. Cooper is a sympathetic plaintiff. She was the director of Equal Opportunity Development for the Department of Labor, responsible for ensuring that the department complied with federal employment standards. After she learned that the Governor had developed a plan to alter how internal equal employment opportunity complaints would be handled by state agencies, Cooper spoke out over her concerns that these new rules would "subject the EEO complaint response process to political pressure" and increase the likelihood that workplace discrimination would go unaddressed. She was fired shortly thereafter.

Title VII's "opposition clause" honors the principle that the cover-up is worse than the crime. If you speak out against employment discrimination at work and suffer retaliation for that, the employer has violated Title VII, even if you did not actually complain about discrimination, so long as you did so in good faith. If you were wrong about the discrimination but did not complain about it solely to make trouble, you are protected from retaliation. That way, employees can speak out without fear of retaliation. Over the years, the courts have issued some pro-plaintiff rulings in this area. Not this time.

Cooper's retaliation was legal, the Second Circuit (Kearse, Chin and Cabranes) says, because she did not oppose an unlawful employment practice. "The conduct she opposed—the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims—is not a 'practice made an unlawful employment practice' by Title VII. Nor could Cooper reasonably have believed otherwise. In defining with great care and precision those behaviors that qualify as 'unlawful employment practices,' the statute lays on employers no obligation to maintain any particular procedures for handling internal complaints. Indeed, the relevant provisions do not touch on the subject at all."

Cooper argued that she did speak out under Title VII because the new internal EEO procedures would have allowed discrimination to go unaddressed if political considerations influenced the outcome of discrimination claims. The Court of Appeals does not see it that way. "That Cooper sought to ensure that hypothetical victims of discrimination received a fair shake does not mean that she 'possessed a good faith, reasonable belief' that accepting [the new] proposal would have qualified as an 'unlawful employment practice' under the statute. Simply put, her argument stretches our precedents and the text of Title VII well past their breaking points."