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Aug 25, 2014

By Eric  B. Meyer

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a number of protected classes. Sexual orientation isn’t one of those protected classes specifically listed in the statute.

So, if an employee complains about sexual-orientation harassment and is later fired because she complained, then that won’t create a claim under Title VII. Or does it?

In Bennefield v. Mid-Valley Healthcare, Inc., an employee allegedly complained to her supervisor that a co-worker was creating a hostile work environment by, among other things, calling the employee a “disgusting lesbian” and a “stupid lesbian.”

When the complaining employee was later fired, she alleged, among other things, retaliation under Title VII based on her complaint of sexual-orientation harassment.

A good-faith complaint invokes Title VII

To establish a retaliation claim, a plaintiff must establish three elements:

  1. She engaged in a protected activity;
  2. She suffered a materially adverse action; and,
  3. A causal relationship between the two.

A protected activity could be a complaint to management or filing a charge of discrimination with the EEOC. Basically, it’s a report (oral or written) that the employer is violating Title VII or concerning a practice the employee reasonably believes violates Title VII.

Got that? A reasonable belief is all it takes. But, if Title VII doesn’t cover sexual orientation, how could a report of sexual orientation harassment be, in good faith, a Title VII complaint? The Oregon federal court explains:

An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking the employer engaged in prohibited conduct. Whether the error is one of fact or law is irrelevant, as long as the mistake is made in good faith….Although the reasonableness prong is an objective standard, courts must take into account “the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.”

Viewing the evidence in the light most favorable to Bennefield, I conclude Bennefield’s months of complaints about Pitts’s discrimination based on Bennefield’s sexual orientation was a protected activity under Title VII. That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable. In making this conclusion, I take into account “the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.”

Given that the employee’s complaint was apparently in good faith, and there remained a dispute of material fact as to whether her complaint led to her termination, a jury will hear the employee’s retaliation claim.

Employer takeaway

Although Title VII doesn’t specifically reference sexual orientation, it’s a very broadly-construed anti-discrimination statute. Retaliation only takes a good-faith complaint.

And don’t forget that sexual stereotyping and same-sex harassment can run afoul of Title VII too. Plus, many state and local anti-discrimination laws specifically cover these areas too.

So, take all complaints of harassment seriously. And do not retaliate.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.