Jordan v. Alternative Resources Corp., 4th Cir. Brief as amicus in support of rehearing May 25, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1458 ROBERT L. JORDAN, Plaintiff-Appellant, v. ALTERNATIVE RESOURCES CORP., et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Maryland AMICUS BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PETITION FOR REHEARING AND REQUEST FOR REHEARING EN BANC JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7040 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES. . . . . . . . . . . . .iii LOCAL RULE 40(b) STATEMENT OF COUNSEL. . . . . 1 STATEMENT OF INTEREST. . . . . . . . . . . . . 1 THE PANEL DECISIONS. . . . . . . . . . . . . . 2 A. The Panel Majority Decision. . . . . . . . 2 B. The Dissent . . . . . . . . . . . . . . 4 ARGUMENT. . . . . . . . . . . . . . . . . . . .5 CONCLUSION. . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE. . . . . . . . . . .12 CERTIFICATE OF SERVICE. . . . . . . . . . . . 13 TABLE OF AUTHORITIES CASES Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998) . .9 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . passim EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005). . . . . . passim Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . passim Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . . . . . 10 Schwabacher v. United States, 334 U.S. 182 (1948). . . . . . . . . . . . . . . . 7 Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998). . . . . . . . . . . . . . . . .7 Van Dusen v. Barrack, 376 U.S. 612 (1964). . . . . . . . . . . . . . . . . . . . 7 STATUTES § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). . . . . . . . passim LOCAL RULE 40(b) STATEMENT OF COUNSEL In my judgment, the majority's interpretation of EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005), conflicts with the plain language of the statute, which protects an employee who takes reasonable action designed to prevent a violation from occurring. In addition, in my judgment the majority decision conflicts with Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which seek to prevent hostile-environment violations from occurring by "encourag[ing] employees to report harassing conduct before it becomes severe or pervasive." Ellerth, 524 U.S. at 764. STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to interpret, administer and enforce Title VII of the Civil Rights Act of 1964 and other federal laws prohibiting employment discrimination. This case raises an important issue related to the enforcement of Title VII: whether an employee should be protected against retaliation when he seeks to prevent a hostile environment from occurring by reporting to the employer significantly offensive racist or sexist behavior by a co-worker or supervisor. THE PANEL DECISIONS A. The Panel Majority Decision In October 2002, Robert L. Jordan, an African American, and Jay Farjah, a co-worker, were in a break room at work watching television when a newscaster announced the capture of two African American suspects in the D.C. sniper case. Farjah stated: "They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." When Jordan discussed this statement with other co-workers, he learned that Farjah had made similar offensive comments many times before. Believing that Farjah's statements violated Title VII and company policy, Jordan complained to several supervisors. After he complained, his superiors changed his work schedule, gave him additional assignments, and then fired him. Jordan sued alleging retaliation, and the district court dismissed for failure to state a claim, ruling that Jordan could not have reasonably believed that Farjah's statements were severe or pervasive enough to constitute a hostile environment. The panel majority acknowledged that after EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005), a retaliation plaintiff does not have to prove that he reasonably believed, when he complained, that the employer had already violated Title VII. The majority held, however, that the general rule is that a retaliation plaintiff does have to prove that he reasonably believed that a violation had already occurred, and that Navy Federal created only a small exception to that rule: namely, that a retaliation plaintiff is also protected by § 704(a) if he can prove that he reasonably believed that a Title VII violation was "in progress . . . and therefore about to occur." Slip op. at 12. The panel majority focused on the fact that in Navy Federal the Commission alleged that Donna Santos reasonably believed that her superiors had concocted and were implementing a plan to fire an employee named Tammy Simms in retaliation for her complaints about discrimination. Santos was protected under § 704(a), the majority held, only because the violation she opposed - the retaliatory termination of Simms - had been planned, and was very likely to occur very soon. The majority acknowledged that Faragher and Ellerth discussed "early reporting policy incentives," but did not see any inconsistency between those incentives and its holding here. Slip op. at 11-12. "Reasonable employees," the panel majority stated, can distinguish between isolated racial slurs, on the one hand, and "conduct that creates a hostile work environment," on the other. Slip op. at 12. Employees who complain about harassing conduct, the majority held, are not protected by Title VII until "they have an objectively reasonable belief that a Title VII violation has occurred or is in progress . . . and therefore about to occur." Slip op. at 12. B. The Dissent Judge King began by stressing how offensive it is to African-Americans to call them monkeys or apes, to describe them as animals rather than humans, as "jungle beasts" with "bestial sexual predilections." Slip op. at 18-19. Turning to the reasonable belief issue, he maintained that Jordan could have reasonably believed that Farjah would continue making offensive racist statements like the one Jordan heard, and that those comments would create a hostile environment. Judge King emphasized that while the circumstances that prompted the statement that Jordan heard were not likely to recur, two co-workers told Jordan that Farjah had made "similar offensive comments many times before," and Jordan thus had a reasonable basis for believing that Farjah would continue making similarly offensive statements in the future unless management intervened to stop him. Slip op. at 21-22. Judge King criticized the panel majority for interpreting Navy Federal too narrowly. The violation that the plaintiff in Navy Federal was trying to prevent was a specific employment action - a retaliatory termination - while Jordan was trying to prevent a hostile environment from occurring, and a hostile environment results from a series of incidents and is rarely the result of a plot or a plan. Slip op. at 23. Instead, Judge King advocated a rule derived from the affirmative defense established by the Supreme Court in Faragher and Ellerth. That defense is designed to encourage employers to take reasonable steps to prevent hostile environments from occurring, and it imposes on employees a corresponding duty to report "harassing and offensive conduct" to their employer. Slip op. at 23-24. It follows, Judge King reasoned, that employees should be "protected under Title VII from employer retaliation if they oppose conduct that, if repeated, could amount to a hostile work environment," and that this Court should not impose the additional requirement that the retaliation plaintiff have a reasonable basis for believing that the conduct will be repeated. Slip op. at 24. Judge King closed his discussion of this issue by criticizing IBM for arguing "that it can, with impunity, fire employees because they have reported harassing and racially charged conduct," and by criticizing the panel majority for confronting employees with a "Catch-22": "By our decision today, Title VII places a duty on employees (such as Jordan) to report harassing and racially charged conduct (like the "black monkeys" comment), but authorizes their employers to fire them for so doing." Slip op. at 25-26. ARGUMENT Section 704(a) of Title VII makes it unlawful for an employer to discrimnate against an individual because he has "opposed a practice made unlawful by [Title VII]." The panel majority holds in this case that a black employee fails to state a claim under this provision when he alleges that he was fired because he complained to management that a white co-worker made a highly offensive racial remark about blacks. According to the majority, an employee's opposition to discrimination is protected by the statute only if he reasonably believes that a Title VII violation has already occurred or "is in progress." Slip op. at 12. If it is left standing, the majority's narrow interpretation of the scope of § 704(a) will undermine the effectiveness of Title VII's prohibition on retaliation as construed by this Court in Navy Federal. It will also leave unprotected many employees who heed their employers' admonishments to promptly report racially or sexually offensive conduct in the workplace. Because the majority's rule is not compelled by the language of Title VII and because it conflicts with Ellerth, we urge the Court to grant rehearing and reverse the district court's dismissal of Jordan's retaliation claim. The panel majority concedes, as it must, that in Navy Federal this Court held that § 704(a)'s protection applies not only to individuals who oppose Title VII violations which have already occurred, but also to individuals who attempt to prevent a violation from occurring. This interpretation conforms to the ordinary meaning of the word "oppose." A person who "opposes" capital punishment, for instance, does so not only by protesting against executions after they have occurred, but also by engaging in activities designed to prevent executions from happening, including, e.g., by voting against the death penalty when on a jury. See, e.g., Truesdale v. Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion from jury of jurors who "opposed the death penalty" because their "opposition to it would prevent [them from] voting for a death sentence"). Similarly, a person who acts to prevent abortions from occurring is commonly said to be "opposing" abortion. Cf. Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) (party "opposed to transfer" will act "to prevent a transfer"); Schwabacher v. United States, 334 U.S. 182, 207 (1948) (stockholders "oppos[e]" a merger by acting to prevent it). In Navy Federal, the district court dismissed a claim that the defendant violated § 704(a) when it fired Donna Santos, an employee who opposed a plan to fire Tammy Simms, another employee, in retaliation for Simms' complaints of race discrimination. The court ruled, among other things, that Santos could not have reasonably believed that Navy Federal had violated Title VII at the time she objected to the plan. This Court reversed, holding that Santos was protected by § 704(a) because she could have reasonably believed that she was opposing a violation even though, when she objected, no violation had yet occurred. After acknowledging the holding of Navy Federal, however, the panel majority limited it to its facts, holding that an individual who opposes something which he does not reasonably believe is already a violation of Title VII is protected only if he reasonably believes a violation is already "in progress," and likely to be completed very soon. Slip op. at 10-12. This standard was met in Navy Federal, according to the majority, because a plan to discriminate had been set in motion. The majority gives no rationale for restricting the rule in this way, and the narrow standard it articulates will leave unprotected many individuals who act reasonably to oppose discrimination by preventing Title VII violations from occurring. The panel majority's ruling is particularly problematic for plaintiffs like Jordan who attempt to prevent a hostile work environment from occurring by complaining about offensive comments or behavior. A hostile environment is a condition of employment that occurs as the result of a series of actions that take place over a period of time. An employee who has witnessed some significant harassment will often not know whether he has witnessed all the harassment that occurred, and will therefore often be in a poor position to assess whether a hostile environment is present (or imminent) yet or not. Such an employee is in a good position, however, to assess how offensive the conduct he witnessed was: whether it was a mere incivility, on the one hand, or the type of serious harassment that can change the terms and conditions of one's employment. Farjah's comment clearly falls in the latter category. He referred to African Americans as "monkeys": animals, not humans; "jungle beasts" with "bestial sexual predilections." Moreover, Jordan learned from two co-workers that Farjah had made "similar offensive comments many times before," and therefore had reason to believe that Farjah would continue making such statements in the future. The panel majority states that a retaliation plaintiff "must have a reasonably objective belief that [the opposed conduct] will continue," and faults the complaint for failing to allege explicitly that Farjah's comments, if continued, would create a hostile environment. Slip op. at 11-12. In reviewing a dismissal for failure to state a claim, however, this Court views the complaint's factual allegations, and the reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff. Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 367 (4th Cir. 1998). The central problem, however, with the majority decision is that it is incompatible with Faragher and Ellerth. The Supreme Court in Faragher and Ellerth adopted an affirmative defense for employers designed to encourage both employers and employees to take actions designed to prevent such violations from occurring. Faragher, 524 U.S. at 805-08; Ellerth, 524 U.S. at 764-65. Employers seeking to avoid potential liability are encouraged to adopt policies prohibiting harassment and encouraging employees experiencing or witnessing harassment to report it, and to respond to such complaints with appropriate and prompt investigation and discipline. Faragher, 524 U.S. at 805-06 (recognizing "the employer's affirmative obligation to prevent violations"). Conversely, employees seeking to preserve potential liability are encouraged to use the procedures that the employer has provided to report harassment they experience or observe. Id. at 806- 07 ("a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages"). In neither decision did the Court encourage or caution employees to wait until they reasonably believe a hostile environment has already occurred, or is about to occur, before using the employer's complaint procedures. Instead, the Court stated that "Title VII's deterrent purpose" would be best served by "encourag[ing] employees to report harassing conduct before it becomes severe or pervasive": i.e., before a person could reasonably believe that a hostile environment already exists. Ellerth, 524 U.S. at 764 (emphasis added); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 145 (2004) (quoting this passage from Ellerth with approval). As Judge King observes, the majority decision leaves employees in this circuit facing a painful Catch-22: An employee who complies with Faragher and Ellerth and complains to his employer about offensive conduct he experiences or witnesses before the harassment becomes severe or pervasive does so at his own risk, because the employer can fire him for complaining. On the other hand, an employee who waits to complain until the harassment is so severe or pervasive that he is sure he will be protected from retaliation faces the risk that, even if a court later finds there was a hostile environment, the employee's failure to complain earlier may well relieve the employer, under Faragher and Ellerth, of any liability. Title VII depends centrally on the involvement of ordinary employees for its enforcement, and § 704(a) should be interpreted so as to encourage that involvement, not discourage it. CONCLUSION For the foregoing reasons, the Commission respectfully requests this Court to grant rehearing or rehearing en banc and construe § 704(a) to protect employees who, pursuant to the duty imposed on them in Faragher and Ellerth, report significant workplace harassment to the employer before it becomes severe or pervasive. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 (202) 663-4737 CERTIFICATE OF COMPLIANCE This brief complies with the page limitation of Fed. R. App. P. 40(b) because it is shorter than 15 pages. This brief complies with the implicit type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), it contains 2390 words, as counted by Microsoft Word 2003. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 Dated: May 25, 2006 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served today by mailing them first class to the following counsel of record: Marc R. Jacobs Seyfarth Shaw LLP 55 E. Monroe St., Ste. 4200 Chicago, IL 60603 J. Hardin Marion Tydings & Rosenberg LLP 100 E. Pratt St., 26th floor Baltimore, MD 21202 Douglas Huron Heller, Huron & Chertkof 1730 M St., N.W., Ste. 412 Washington, DC 20036 Paul D. Ramshaw Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 202-663-4737 May 25, 2006