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Piercing the Bulletproof Employee

The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination.

August 16, 2012

Retaliation comes in two flavors: participation and opposition. The former protects employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" the relevant statute; the latter protects employees who have "opposed any practice made an unlawful employment practice." Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher's assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school's staff was African-American, including 29 of the school's 31 teacher's assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed "duty[-]free breaks," while African-Americans were "criticized for taking breaks"—"a clear violation of the Civil Rights Act of 1964." After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court's dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee's opposition must "be based on a reasonable and good faith belief that the opposed practices were unlawful." In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson's unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer's ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fears can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.