The issue presented in Rite Way Service is closely related to the one addressed by the Supreme Court in Crawford v. Metropolitan Government of Nashville, 555 U.S. 271 (2009). Under the retaliation provision of Title VII of the Civil Rights Act of 1964, it is unlawful "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII]." In Crawford, the Court issued a rather narrow ruling, relying on a common-sense notion of what it means to oppose something. Under that view of "opposition," the Court concluded that Title VII protects both proactive opposition and reactive opposition, and it rejected the Sixth Circuit's "freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question."
In my view, the Fifth Circuit's and the Supreme Court's interpretations of Title VII's retaliation provision both give too little weight to the special posture of third-party witnesses who are merely answering an employer's questions regarding another employee's allegation of discrimination.
As the Supreme Court acknowledged in Crawford, under its analysis, there would be no protection in "eccentric cases" where a third-party witness did not actually object to the conduct she witnessed, such as an employee who thought a supervisor's racist joke was hilarious. By interpreting Title VII as only protecting a third-party witness's truthful responses to an employer's questions if she was personally offended by the conduct she witnessed, the Court seems to have adopted the kind of "freakish" rule that it said the Sixth Circuit had adopted.
In Rite Way Service, the Fifth Circuit acknowledged that a third-party witness may have an "information disadvantage compared with the victim [since a] third party may not know if she has witnessed the entirety of the harassing behavior, or only a snippet." The Fifth Circuit noted, however, that a third-party witness would have the same information disadvantage regardless of whether she proactively opposed discrimination by affirmatively complaining of discrimination or she reactively opposed discrimination by responding to an employer's questions. And yet the Fifth Circuit had previously applied the reasonable belief standard to proactive complaints by both victims and third-party witnesses. Thus, the court suggests that a third-party witness's information disadvantage is insufficient to justify doing away with the reasonable belief standard even if opposition is reactive.
Here, I think the Fifth Circuit mistakenly focuses on what distinguishes third-party witnesses from victims, rather than on what distinguishes reactive opposition from proactive opposition. In this context, the important distinction between reactive and proactive opposition is who initiates the process. If a third-party witness engages in reactive opposition, it is not ordinarily because she believes she was subjected to discrimination but because she is cooperating with the employer. Thus, the third party is not accusing the employer of unlawful discrimination, but merely doing what the employer has asked her to do. Under such circumstances, a third party would reasonably believe that she is opposing unlawful discrimination merely by helping the employer as part of a process intended to combat discrimination.
Of course, a third-party witness could have a reasonable belief that she is opposing unlawful discrimination, but that really seems beside the point in this kind of situation. So long as the third party is truthful, her assistance to the employer should therefore be regarded as protected opposition in and of itself, regardless of whether the third party reasonably believes that the underlying conduct is unlawful and regardless of whether the third party objects to the conduct.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on
how to analyze any particular set of facts.
