Worker's objection to supervisor's behavior is not "protected activity" for purposes of Title VII retaliation claim

The plaintiff in this case was a dental assistant who claimed her supervisor was having sex with her female colleagues. Plaintiff told her supervisor to knock it off, and she endured a series of adverse actions afterward. This portion of the case was dismissed on summary judgment. Did plaintiff engage in protected activity? The Court of Appeals says she did not.

The case is Qorrolli v. Metropolitan Dental Assocs., issued on December 23. I briefed and argued the appeal. I will summarize the other significant holding in this case in a future blog post.

As the Court of Appeals notes, Qorrolli asserted that supervisor Orantes "gave preferential treatment to the women who acceded to Orantes’ advances and unfairly punished those women who rebuffed him, including Qorrolli." In other words, women who had sex with Orantes were treated more favorably at work than plaintiff, who had rebuffed him. At deposition, Qorrolli testified that she would “make it pretty obvious that . . . [she was] not interested” through nonverbal cues. For instance, Qorrolli tried to rebuff Orantes by ignoring his advances, “st[anding] there frozen,” and walking away from him. Qorrolli also testified to making general objections to Orantes’ behavior, saying she “really need[s] [Orantes] to get off [her] back. [She] need[s] this to stop. [She is] starting to feel very  uncomfortable.” She also testified that sometime in 2016 she told Orantes to “back off and leave [her] alone because [she couldn’t] take this anymore." 

Plaintiff's objections to Orantes are not protected activity, the Court holds. "Qorrolli’s verbal complaints to Orantes were too generalized to constitute protected activity under the laws prohibiting employment discrimination. As Qorrolli herself admitted, she 'never directly told [Orantes to] stop sexually harassing [her],' and her broad requests that Orantes 'back off' could not reasonably have been understood as remonstrations regarding Orantes’ sexual advances as opposed  to  his  abrasive  but  non-sexual workplace  behavior, particularly given that Qorrolli does not allege that any such statements were made immediately after Orantes attempted to sexually harass her." In addition, the Court holds, "the silence, inaction, and avoidance described by Qorrolli when Orantes made sexual advances did not rise to a level of outwardly expressing opposition to her supervisor’s alleged discrimination or sexual harassment."

Plaintiff also complained to the business owner, Dr. Cohen. As the Second Circuit summarizes this evidence:

Specifically, Qorrolli testified that during her conversation with Cohen about Orantes’ perceived sexual advances, she said “[l]isten, this is what’s going on. . . . I’m not gonna be put in a position where I have to be sexually involved in order to keep my job here. . . . [A] lot of these women get away with everything, murder here, the things that go on. . . . [A]ll the blame that I’m getting is theirs. . . . I said I’m not going to allow myself to become sexually involved with [Orantes] to get away with the things that other women get away with here.”

The Court of Appeals holds that no jury can find that Plaintiff had engaged in protected activity, i.e., that she had protested sexual harassment to Dr. Cohen. The Court holds, "Although Qorrolli responded 'correct' when asked in her deposition if 'at some point' she went to 'Cohen about these perceived sexual advances from [Orantes],' her own description of that conversation reveals that her verbal complaint to Cohen focused on her objection to being treated poorly in  comparison  to other  female  employees  who  were romantically or sexually involved with Orantes. The Court holds this was not a complaint about sexual harassment or sex discrimination, but instead a complaint about "paramour preference," in which employees are treated disparately not because of gender "but rather on a romantic relationship between an employer [or supervisor] and a person preferentially treated." Because of this distinction, plaintiff was not actually complaining about conduct that violated the employment discrimination laws.

Is the paramour preference still a legitimate exception to discrimination under Title VII? Under the more textual approach the Supreme Court has taken in interpreting Title VII claims, such as in Bostock v. Clayton County, where the Supreme Court held that sexual orientation and transgender discrimination is a form of gender discrimination, is the paramour preference in fact discrimination based on sex?