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Employment Law Blog
James Tarquin, P.A
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Are Employees Protected Against Retaliation When Giving Information During An Investigation Into Sexual Harassment?

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Title VII of the Civil Rights Act of 1964 (Title VII) protects employees against retaliation for opposing any practice made an unlawful employment practice under Title VII.  Under well-established law, a sexual harassment victim who makes an internal complaint of sexual harassment is protected from retaliation by Title VII.   However, courts have struggled with the issue of whether third-party witnesses who answer questions in response to an employer’s internal investigation into a victim’s complaint of sexual harassment are protected from retaliation by Title VII.  In response to a complaint by a victim of sexual harassment, employers will often conduct an internal investigation into the allegations of sexual harassment.  During the course of the internal investigation, employers may question other employees about what they heard or saw regarding the alleged sexual behavior.  An issue inherently arising under such circumstances is whether employees who come forward during the internal investigation with information about sexually harassing behavior they heard or saw are protected against retaliation by Title VII.  In EEOC v. Rite Way Service, Inc.,819 F.3d 235 (5th Cir. 2016), the U.S. Fifth Circuit Court of Appeals addressed the issue of whether an employee who is interviewed as part of the employer’s internal investigation into sexual harassment allegations is protected from retaliation by Title VII.   

Employees Coming Forward With Information Protected Against Retaliation

In that case, Mekeva Tennort (Tennort) filed a retaliation lawsuit pursuant to Title VII against Rite Way Service, Inc. (Rite Way).  During her employment with Rite Way, Tennort witnessed two separate incidents of sexual harassment by a supervisor against a female co-worker.  The first incident involved the supervisor pretending to smack the co-worker’s rear end and saying “ohh wee.”  The second incident involved the supervisor remarking about that he was looking at and admiring the co-worker’s rear end.  After the second incident, the co-worker complained about the supervisor’s behavior and identified Tennort as a witness.  Rite Way then began investigating her complaint.  In response to Rite Way’s request, Tennort submitted a written report regarding the second incident of sexual harassment.  Over the next five weeks, Tennort received two written warnings and two oral warnings for poor job performance.  Shortly thereafter, Tennort was fired for “neglect of duty” and “not following direction.” 

Tennort claimed that the alleged performance issues were fabricated and that she was terminated in retaliation for reporting the incident of sexual harassment.  The trial court dismissed Tennort’s retaliation claim.  On appeal, the Fifth Circuit reversed the trial court’s decision and reinstated Tennort’s retaliation claim.

The Fifth Circuit determined that a third-party, such as Tennort, who provides information about sexual harassment in response to an employer’s internal investigation is protected by Title VII against retaliation.  Having resolved the threshold issue before it, the Fifth Circuit then turned to the issue of what an employee must demonstrate in order to secure protection against retaliation.  Tennort argued that she was not required to establish a good faith, reasonable belief that the behavior she reported constituted unlawful sexual harassment in violation of Title VII in order secure protection from retaliation.  Rather, Tennort maintained that she was entitled to protection from retaliation simply by reporting the sexual behavior.  The Fifth Circuit disagreed and held that the good faith, reasonable belief standard applies when a third-party witness comes forward with information about sexual harassment in response to an employer’s internal investigation.  The Fifth Circuit therefore held that Tennort had to establish that she had a good faith, reasonable belief that the supervisor’s behavior was unlawful sexual harassment in violation of Title VII in order to be protected against retaliation.

However, as the Fifth Circuit explained, the good faith, reasonable belief standard does not require a third-party witness, such as Tennort, to prove that the behavior was in fact unlawful sexual harassment in violation of Title VII.  Instead, the Fifth Circuit observed, “the reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII.”  In other words, a third-party witness does not have to be right about whether the behavior was in fact unlawful sexual harassment, but simply must show that he or she reasonably believed the behavior was unlawful sexual harassment.  The “existence of this grey area” between an actual violation and a reasonably perceived violation, the Fifth Circuit pointed out, means that protection against retaliation is not lost when the third-party witness is wrong about whether the behavior was actually unlawful sexual harassment in violation of Title VII.

Having set forth and explained the standard governing Tennort’s retaliation claim, the Fifth Circuit concluded that it was for a jury to decide whether “Tennort could have reasonably believed that the behavior about which she chose to speak violated Title VII.”  The Fifth Circuit further determined that Tennort had produced sufficient evidence to establish that she was fired in retaliation for making the written report about the supervisor’s sexual behavior.  As evidence of Rite Way’s retaliatory motive, the Fifth Circuit pointed to evidence showing that Tennort was fired shortly after making her written report, Tennort did not become an alleged problem employee until she spoke out about the supervisor’s behavior, and the management employee who took her written statement warned Tennort “you know what they do to people who do stuff like this.” 

Third Party Witness & Reasonable Belief Standard

The Fifth Circuit’s decision in Rite Way establishes that employees who provide information about sexual harassment as part of an employer’s internal investigation into sexual harassment allegations are protected from retaliation so long as they have a good faith, reasonable belief that the behavior reported was unlawful sexual harassment.  The  Rite Way decision further establishes that an employee who speaks up in response to questioning during an employer’s internal investigation into sexual harassment allegations does not lose protection against retaliation even if he or she is wrong about whether the conduct was in fact unlawful sexual harassment.  The Fifth Circuit’s decision in Rite Way further illustrates whether an employee reasonably believed that the behavior he or she reported during the employer’s internal investigation was actually unlawful sexual harassment is often an issue for a jury, rather than a trial judge as a matter of law, to decide. 

Consultation With Employment Law Attorney   

We have extensive experience representing employees who have been retaliated against for complaining about discrimination or harassment in the workplace.  If you have been retaliated against, or have questions about your rights when providing information as part of a company’s internal investigation into allegations of discrimination or harassment, please contact our office for a free consultation.

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