DEFENDING FLORIDA EMPLOYERS: DEFEATING BAD FAITH CLAIMS OF RETALIATION

Certain types of employee complaints to an employer qualify as “protected activity.” An employer that responds to a protected complaint by terminating, demoting, or otherwise taking an adverse employment action against the employee risks being sued for retaliation under Title VII of the Civil Rights Act of 1964 or the Florida Civil Rights Act of 1992. For a complaint to qualify as protected activity, the employee must have a good faith and objectively reasonable belief that the complained of conduct was in fact unlawful discrimination. Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

To establish a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964, an allegedly aggrieved employee must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068 (11th Cir.1995)

The conduct complained of need not actually constitute unlawful discrimination to qualify as “protected activity.” An employee’s erroneous complaint concerning lawful conduct can still constitute protected activity when that employee has “a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir.1997). However, it is insufficient for a plaintiff “to allege his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.” Id. The reasonableness of a plaintiff’s belief that his or her employer “engaged in an unlawful employment practice must be measured against existing substantive law.” Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir.2010).

In Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385 (11th Cir. 1998), the federal appellate court adjudicated whether it was lawful for an employer to terminate an employee for complaining about a discriminatory grooming policy. Particularly, the employer had a policy by which women, but not men, were permitted to have long hair. While such a policy is clearly discriminatory between men and women, binding prior precedent in the federal appellate decision Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084 (5th Cir. 1975), had held that such a grooming policy did not constitute unlawful discrimination. The appelate court in Willingham held that, “hair length regulations ‘are classifications by sex … which do not represent any attempt by the employer to prevent the employment of a particular sex, and which do not pose distinct employment disadvantages for one sex. Neither sex is elevated by these regulations to an appreciably higher occupational level than the other. We conclude that Title VII never was intended to encompass sexual classifications having only an insignificant effect on employment opportunities.”Id.

Subsequent federal appellate decisions repeatedly followed the Willingham precedent. Consequently, the federal appellate court in Harper court determined that the employee’s complaint concerning the discriminatory hair-length policy was not objectively reasonable, and therefore not protectable under Title VII. “The reasonableness of the plaintiffs’ belief in this case is belied by the unanimity with which the courts have declared grooming policies like [the employer’s] non-discriminatory. Every circuit to have considered the issue has reached the same conclusion reached by this Court in the Willingham decision.” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385 (11th Cir. 1998). Thus, it was not unlawful for the employer in Harper to terminate the employment of the employee who complained about the hair-length policy.

Some terminated employees fabricate baseless claims of retaliation. Employers need to carefully review the alleged factual basis of the accusation of retaliation. When the employee makes a baseless assertion that he or she previously complained to the employer about discrimination, it does not constitute “protected activity” for purposes of a retaliation claim. A bad faith assertion of discrimination does not qualify as a legal predicate for a retaliation claim. In addition, the alleged “discrimination” might not qualify as unlawful discrimination under the law as interpreted by the federal and state appellate courts.

Peter Mavrick is an experienced Fort Lauderdale employment attorney who defends businesses. This article does not serve as a substitute for legal advice tailored to a particular situation.