Here’s one way to lose a Title VII retaliation case

This case highlights a loophole in the civil rights laws which prohibit retaliation in the workplace. You cannot suffer retaliation for complaining about discrimination against yourself or any coworkers. But the law does not protect you when you are complaining about retaliation against other people.

 

The case is Gerzhgorin v Selfhelp Community Services, Inc., a summary order issued on March 13. Plaintiff sued his former employer, and one of its programs, the Russian Holocaust Survivors Program, for religious discrimination and retaliation in violation of Title VII. 

 

In order to win a retaliation case, you have to prove you spoke out against discrimination in good faith. One way for management to challenge that requirement is through proof that plaintiff literally spoke out in bad faith, that he did not really intend to protest discrimination and only did so for other reasons, such as to fight off what he perceived as his pending termination for other reasons. Another way for management to disprove any protected activity is by showing that plaintiff was never really protesting Title VII discrimination in the first place. That’s how defendant wins this case.

 

Plaintiff spoke out against discrimination against his employer’s clients, not employees. He said that food provided for clients was not strictly kosher and that music selections for client events was not appropriate. But, the Court of Appeals (Walker, Lynch and Robinson) says, “[c]onduct directed entirely toward non-employees generally cannot be characterized as an unlawful practice by an employer.” That quote derives from Wimmer v. Suffolk County Police Dept., 176 F.3d 125 (2d Cir. 1999). While “such conduct may contribute to a hostile work environment under some circumstances,” plaintiff in this case is not pursuing a hostile work environment case.