4th Cir.: Reporting Racial Epithet Not "Protected Activity" in Title VII Retaliation Case

From Robert Loblaw at Decision of the Day:

Here’s a troubling Title VII case from the Fourth Circuit.

After a colleague at IBM made an extremely ugly racial comment, plaintiff Robert Jordan complained to his supervisors. Life at work began to get difficult for Jordan and he was fired within the month. He sued, claiming that his employer retaliated against him for reporting the offensive comment.

The district court dismissed, concluding that Jordan’s complaint to management was not "protected activity" within the meaning of Title VII. A divided Fourth Circuit affirms over a dissent by Judge King. According to Judge King, the decision creates a Catch-22 by placing "employees like Jordan in an untenable position, requiring them to report racially hostile conduct, but leaving them entirely at the employer’s mercy when they do so."

Unlike the case pending before the Supreme Court now, the question is not whether adverse action has been taken against Jordan, but whether he engaged in protected activity. This is the plaintiff's burden in a so-called opposition retaliation case, as opposed to a participation case where the alleged retaliation has occurred because the plaintiff has filed a charge of discrimination with the EEOC or participated in an investigation or other EEOC proceeding.

Courts have found in the past that engaging in boycotts to protest a store's racially discriminatoy hiring and promotion policies is protected activity (Payne), so it is less than clear why reporting an ugly epithet like this employee did, consistent with eradicating racial discrimination and harassment from the workplace, would not qualify.

Thoughts?

The case is Jordan v. Alternative Resources Corp., 05-1485 (4th Cir, May 12, 2006).

PS