Is Telling a Supervisor To Stop His Sexual Harassment Protected Activity?

Both federal and Kentucky state law make it unlawful to retaliate against an employee that has opposed some unlawful employment practice such as sexual harassment.  The courts characterize the key question as whether the employee engaged in "protected activity"; if so, the anti-retaliation provisions apply.

If an employee tells her supervisor to stop sexually harassing her is it protected activity? That simple question was decided recently by the Sixth Circuit, which covers Kentucky, in EEOC v New Breed Logistics.

Three employees, Pete, Pearson and Hines all were sexually harassed their supervisor, Calhoun, and, in one way or another, told him to stop it. Another employee, Partee, a male, told Calhoun that he should stop sexually harassing the female employees or he would get in trouble. 

The employer, New Breed Logistics out of Memphis, argued that what these four employees, Pete, Pearson, Hines and Partee, said and/or did was not "protected activity" and, therefore, they had no basis for any retaliation claim arising from their subsequent firing. The Sixth Circuit rejected this argument and explained as follows:

we conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct.

This ruling as to the employees' protected activity was one part of a decision that upheld a jury's verdict awarding and assessing some $1.5 million to the four employees.