Originally published in the February 2004 New York Law Journal.

Title VII of the Civil Rights Act of 1964 forbids an employer from retaliating against an employee because of the employee’s opposition to “any practice made an unlawful practice” by Title VII, or the employee’s participation in “an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).  Thus, to state a viable claim for retaliation, a plaintiff must first establish that he or she opposed an unlawful employment practice or participated in an investigation, proceeding or hearing under Title VII.  The other elements of a retaliation claim are employer knowledge of the protected activity; an adverse employment action; and a causal connection between the protected activity and the adverse employment action.  Cruz v. Coach Stores, Inc, 202 F.3d 560, 566 (2d Cir. 2000).  An employee’s opposition to an unlawful employment practice, or participation in an investigation, proceeding or hearing under Title VII, is referred to as “protected activity.”

A typical example of protected opposition activity is an employee making internal reports about discriminatory employment practices or harassment directed toward the employee or the employee’s colleagues.  Recently, Second Circuit courts have established several rules regarding whether an employee engages in protected activity by complaining about discrimination that affects persons other than the employee’s co-workers.

First, an individual does not engage in protected activity by reporting discrimination that an employer directs toward victims who are not in an employment relationship with the employer.  Second, it is protected activity to report discriminatory conduct directed by an employer toward one of its employees, even if the reporting individual does not work for that employer and is not a colleague of the employee-victim.  Each of these rules finds its justification in the language of Title VII, which prohibits discrimination against those who oppose an unlawful employment practice.

In Wimmer v. Suffolk County Police Department, 176 F.3d 125 (2d Cir. 1999), cert. denied, 528 U.S. 964, 120 S. Ct. 398, 145 L. Ed. 2d 310 (1999), plaintiff was a police officer who claimed that he had been fired in violation of Title VII and the New York Human Rights Law for complaining that other officers had been racist in their interactions with the public.  The Second Circuit affirmed summary judgment for the employer, noting that plaintiff made no claim that he or other employees had suffered discrimination with regard to terms and conditions of employment.  Instead, plaintiff’s complaints concerned a practice that was directed at third parties who had no employment relationship with the defendant.  Considering that plaintiff had not complained about an “unlawful employment practice of his employer,” the court held that plaintiff’s Title VII claim was not cognizable, and similarly dismissed plaintiff’s state law claim.

The court further addressed the question of whether plaintiff had a good faith belief that he had challenged an illegal policy.  If an employee has such a belief – even if the challenged policy is not actually illegal – the employee has engaged in protected activity.  The court held that plaintiff could not have “reasonably believed that he was opposing an employment practice because the evidence [did] not address racial discrimination in an employment practice.”  Id. at 136.

This rule was applied by an Eastern District court in Taneus v. Brookhaven Memorial Hospital Medical Center, 99 F. Supp. 2d 262 (E.D.N.Y. 2000).  The Taneus plaintiff was a nurse who had complained that a manual regarding HIV/AIDS patients published by the hospital where she worked was biased against Haitians.  Plaintiff claimed that she had been constructively discharged in violation of Title VII for raising this issue.  Citing Wimmer, the court held that “neither the ‘unlawful practice’ nor the ‘good faith belief’ requirement is satisfied where the practice complained of was not directed at employees but, instead, was directed to individuals who are not in an employment relationship with the defendant.”  The court noted that plaintiff’s original grievance had concerned a policy that applied to the treatment of patients, rather than the treatment of employees.  Thus, the court found that plaintiff had not opposed an employment practice and therefore had not engaged in protected activity, warranting dismissal of plaintiff’s claim.  Similar circumstances arose in Beers v. Kaiser Permanente Northeast Division, 1999 WL 1260419 (N.D.N.Y. Dec. 16, 1999), where plaintiff was a hospital employee who had complained about the alleged harassment of patients by doctors.  The court dismissed the complaint in Beers because it involved conduct directed toward non-employees.

Most recently, in Kunzler v. Canon, U.S.A., Inc., 257 F. Supp. 2d 574 (E.D.N.Y. 2003), plaintiff had been a sales representative of the defendant, and had complained internally regarding alleged harassment of a customer by his supervisor.  When the customer denied that any harassment had occurred, plaintiff left her a threatening and vulgar message.  For this and other reasons, plaintiff’s employment was terminated.  The court found that no protected activity had taken place because plaintiff’s internal complaints concerned alleged harassment directed toward a customer who was not employed by the defendant.  Thus, plaintiff had not complained about an unlawful employment practice and, on that basis, summary judgment was granted in favor of the defendant employer.

In McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001), the Second Circuit refined its analysis of these issues by holding that opposition to conduct which occurs between an employer and an employee can be protected even where plaintiff does not work for the employer engaging in the conduct.  The McMenemy plaintiff had reported that the president of his union had harassed a union secretary.  Plaintiff then sued, claiming that he had been denied a promotion because of his report.  The District Court dismissed plaintiff’s retaliation claim relying on Wimmer.

On appeal, the Second Circuit reversed, finding that a viable retaliation claim had been stated under Title VII despite the fact that neither party to the alleged harassment was in an employment relationship with plaintiff or plaintiff’s employer.  The court stated that the critical issue in assessing whether the “protected activity” element has been satisfied is whether a plaintiff’s complaint concerns acts that are prohibited by Title VII.  If so, making the complaint constitutes protected activity.  This rule applies with equal force even if the complaint relates to conduct outside the complaining employee’s workplace that does not involve the complaining employee’s employer or colleagues.  The McMenemy plaintiff’s complaint concerned an employment practice and under Title VII – which prohibits discrimination against any employee who “has opposed any practice made an unlawful employment practice” – plaintiff had engaged in protected activity.  Id. (emphasis in original), quoting, 42 U.S.C. § 2000e-3(a).

The court cited the Equal Employment Opportunity Commission’s interpretation of Title VII in reaching its conclusion.  According to the EEOC, federal discrimination laws prohibit retaliation even when the employer committing the retaliation is different from the employer about which a plaintiff lodged the original complaint.  For example, it would be unlawful for an employer to refuse to hire an individual because the individual had filed a discrimination complaint against a previous employer.  EEOC Compliance Manual § 8-II(C)(4) (Dec. 5, 2000); see also Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) (holding the same and cited in McMenemy).  The court found this interpretation consistent with a primary purpose of the retaliation clause, namely maintaining unfettered access to Title VII’s remedial mechanisms.

The Second Circuit distinguished the facts in McMenemy from those in Wimmer by noting that the Wimmer plaintiff had directed complaints “at the behavior of co-employees toward third parties” and that such complaints were “unrelated to an employment practice made illegal by Title VII.”  The McMenemy plaintiff, by contrast, had complained about an unlawful employment practice, even though the practice did not involve his employer.

In sum, to determine if an individual has engaged in protected activity by opposing an unlawful employment practice, the key question is whether the complaint concerns conduct between an employer and its employee.  If so, such opposition activity is protected.  If, however, an individual opposes conduct that occurs outside of an employment relationship, the individual does not engage in protected activity and cannot state a viable retaliation claim based thereon.