The 'Protected Activity' Prong Of A Prima Facie Retaliation Claim

Courts increasingly scrutinize the "protected activity" prong of a plaintiff's prima facie retaliation claim under Title VII of the Civil Rights Act of 1964 and other, similar anti-discrimination laws. This week, in an unpublished opinion, the Fifth Circuit ruled that a plaintiff had not engaged in protected activity by reporting one "Heil Hitler" comment because "no reasonable person would believe that the single 'Heil Hitler' incident" constituted a hostile work environment, actionable under Title VII. Satterwhite v. City of Houston, No. 14-20240, (5th Cir. March 3, 2015) (unpublished). Therefore, the plaintiff could not establish a prima facie case of retaliation. The court noted that it has "rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law." Importantly as well, the court recognized that the fact that such a comment violated the employer's policy does not mean that it rises to the level of an unlawful employment practice as defined by law.

The Fifth Circuit is not alone. Last year, the Fourth Circuit ruled that an employee did not engage in protected activity when she reported that a co-worker used the term "porch monkey" on two occasions. Boyer-Liberto v. Fountainbleau Corp., 752 F.3d 350 (4th Cir. 2014), rehn'g en banc granted by No. 13-1473, July 1, 2014. The Boyer-Liberto decision is on en banc review by the Fourth Circuit, but the decision is similar to other decisions within the Fourth Circuit.

Finally, for years, the Eleventh Circuit has explained that for a complaint to constitute protected activity, the individual making the complaint must have an objectively reasonable belief that the cited conduct was proscribed by the...