Most people know that “retaliation” is illegal under Title VII and similar laws, but not everyone understands some of the finer points of what “retaliation” really means.  Generally, according to the EEOC, a retaliation claim has three elements:

(1) protected activity: “participation” in an EEO process or “opposition” to discrimination;

(2) materially adverse action taken by the employer; and

(3) requisite level of causal connection between the protected activity and the materially adverse action.

As such, the first question when analyzing a retaliation claim is whether the alleged retaliation occurred after activity that is protected by the law, also known as “protected activity”.  However, one concept that is not well known is that “protected activity” includes two separate protections – “participating” in an EEO process or “opposing” discrimination.

These two types of protected activity arise directly from two distinct statutory retaliation clauses. On one hand, there is participation in an EEO claim, which refers specifically to raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws. By contrast, opposition activity encompasses a broader range of activity by which an individual opposes any practice made unlawful by the EEO statutes. The protection for opposition is limited, however, to those individuals who act with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it.  Said another way – Title VII of the 1964 Civil Rights Act prohibits retaliation against employees because of either their participation in an investigation, proceeding, or hearing under Title VII (the “Participation Clause”), or because they oppose discriminatory actions (the “Opposition Clause”).

Today, we are going to briefly look at a recent decision out of the U.S. Court of Appeals for the Sixth Circuit, which clarifies what qualifies as opposition activity under Title VII. In Jackson v. Genesee Cnty. Road Comm’n, 2021 WL 2155045 (6th Cir. May 27, 2021), the Sixth Circuit reversed a district court’s grant of summary judgment in favor of the employer, holding that performance of one’s job duties can qualify as protected activity under Title VII.

In Genesee, the Defendant Genesee County Road Commission (“GCRC”) hired Makini Jackson, an African American woman, as HR Director in March 2016.  In her role as HR director, Ms. Jackson investigated several discrimination complaints from various employees involving the director of equipment and facilities.  Following her investigation, Ms. Jackson ultimately recommended that the director be terminated and negotiated the director’s severance package.  In addition to handling employee complaints, Ms. Jackson was the Equal Employment Opportunity (“EEO”) Officer and approved the Equal Employment Opportunity Plans (“EEOPs”) submitted by vendors and contractors who worked with GCRC.

Shortly after being hired on, Ms. Jackson became concerned that the director of engineering and the director of construction were colluding under the table with potential bidders. As a result, Ms. Jackson edited the EEOP submission instructions to require that all entries and questions regarding the EEO Plan Policy and Process be directed solely to her.  Shortly thereafter, complaints regarding Ms. Jackson’s communication and domineering style started coming in, from vendors and employees alike.

A few months later (in October 2016), the Defendant GCRC terminated Ms. Jackson’s employment and no reason was provided for her termination other than that she was an at-will employee. In May 2017, she filed a Charge of Discrimination with the EEOC, claiming she engaged in protected activity.  Ms. Jackson later brought suit alleging three claims, one of which was a claim of retaliation under the Opposition Clause of Title VII.

Although the trial court originally ruled for the employer, GCRC, the U.S. Court of Appeals for the Sixth Circuit later reversed – finding that Ms. Jackson’s investigation of employee complaints against the director constituted protected activity. The Sixth Circuit also found that Ms. Jackson’s conduct within her role as EEO Officer constituted protected activity. In reaching its decision, the court clarified that Ms. Jackson’s actions could be viewed as taking steps to ensure there was no discrimination within GCRC and among its vendors, and as such, her activities constituted protected activity under Title VII.

So, why does this matter? Well, in short it means that an employee does not have to prove that they engaged in conduct outside their regular job duties to sustain a Title VII Opposition Clause claim.  Instead, to constitute opposition activity, an employee must only express opposition in a reasonable manner and must have a reasonable and good faith belief that the opposed practices were unlawful.

So if you have an employee that is an HR director, manager, or someone in a similar capacity, to gain protection under the Opposition Clause of Title VII, there is now an argument that they do not need to engage in conduct outside their regular job duties to sustain a Title VII opposition clause claim –  instead, they must only express opposition in a reasonable manner and must have a reasonable and good faith belief that the opposed practices were unlawful.