Jordan v. Alternative Resources Corp. (4th Cir.) Amicus brief in support of suggestion for rehearing en banc Sept. 6, 2006 ________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ________________________________________________ No. 05-1485 ________________________________________________ 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 REQUEST FOR REHEARING EN BANC ________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney 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 15 CERTIFICATE OF COMPLIANCE 16 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 11, 13-14 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . 1, 9-13 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. ----, 126 S. Ct. 2405 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 14 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) . . . . . . . . . . 1, 9-13 Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745 (4th Cir. 1996) . . . . 12 Jennings v. University of North Carolina, 444 F.3d 255 (4th Cir. 2006) . . . 12 Matvia v. Bald Head Island Management, Inc., 259 F.3d 261 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . .10-12, 14 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) . . . . . . . . 10 Schwabacher v. United States, 334 U.S. 182 (1948) . . . . . . . . . . . . .7, 8 Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000) . . . . . . 12 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 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 exclaimed: "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, two of them told him 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 when he complained, he reasonably believed that the employer had already violated Title VII. Slip op. at 9-10. 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 plaintiff is also protected from retaliation by § 704(a) if he can prove that he reasonably believed that a Title VII violation was "in progress" or would happen "soon." Slip op. at 10. The majority noted that in Navy Federal the Commission alleged that Donna Santos reasonably believed that her superiors had concocted and were in the process of 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. Id. The majority acknowledged that Faragher and Ellerth discuss "early reporting policy incentives," but it did not see any inconsistency between those incentives and its holding here. Id. at 11-12. "Reasonable employees," the panel majority stated, can distinguish between "an isolated racial slur," on the one hand, and "the sort of severe or pervasive conduct that creates a hostile work environment," on the other. Id. at 12. Jordan (and the EEOC) had argued that the rule the majority adopted places employees witnessing significantly offensive conduct in a Catch-22: employees waiting too long to complain risk losing any lawsuit they might bring challenging the hostile environment, while employees complaining too early risk termination with no protection against retaliation. Id. at 11-12. The majority reasoned that such employees face no genuine dilemma because protection against retaliation depends on the sufficiency of the harassing conduct, while the employer's affirmative defense turns on whether the employee delayed unreasonably before complaining. Id. at 13. Moreover, the majority noted, an employee who complains after an unreasonable delay is still protected against retaliation (as long as his belief was reasonable), and the employer will still have an incentive to eliminate the harassment and to refrain from retaliation (because to defend itself in other suits alleging harassment, it must establish that its anti-harassment policy is effectively enforced). Id. 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." Id. at 25-27. 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 unless management intervened to stop him (since two co-workers told Jordan that Farjah had made "similar offensive comments many times before"), and that those comments would create a hostile environment. Id. at 28-30. Judge King also 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. Id. at 30-31. 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. Id. at 31. 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. Id. at 31-32. He stressed that employees witnessing significantly offensive conduct confront a Catch-22 unless they "are always protected by Title VII's anti-retaliation provision whenever they are obliged to report improper conduct." Id. at 34. ARGUMENT Section 704(a) of Title VII makes it unlawful for an employer to discriminate 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 that 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," the crucial term in the relevant statutory text. A person who "opposes" capital punishment, for instance, does so not only by protesting 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's complaints of race discrimination, ruling, 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. See 424 F.3d at 406-07. The Commission alleged that based on statements by Navy Federal's personnel head and its outside counsel, Santos came to believe that Navy Federal's management was planning to fire Simms in retaliation for her complaint of discrimination, and that management was laying the groundwork for that termination by: (a) scrutinizing Simms's performance unusually closely to find some pretext for firing her, and (b) giving her, in the meantime, performance evaluations that were more positive than she deserved because management feared that Simms could use negative evaluations as evidence of retaliation. Id. at 402-03. This Court reversed, holding that the Commission had offered evidence that Santos reasonably believed that the defendant's management was planning to fire Simms in retaliation for complaining about discrimination, and that the heightened scrutiny and the favorable evaluation were initial steps in that plan. "When Santos objected to the added surveillance and refused to sign the misleading evaluation of Simms," this Court held, "she therefore reasonably believed that she was opposing unlawful retaliation." Id. at 407. Thus Santos's actions were protected under § 704(a) even though, at the time Santos acted, Navy Federal had not yet violated Title VII by firing Simms, and had not yet even asked Santos to fire her - and in fact never did fire her. Even so, Santos's actions were protected because she took reasonable actions designed to prevent something from occurring that she reasonably believed would violate the act. 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 9-10. 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 central problem 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 hostile environments from developing. Faragher, 524 U.S. at 805-08; Ellerth, 524 U.S. at 764-65. Employers should be encouraged to adopt policies that prohibit harassment and that encourage employees 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"). At the same time, employees should be encouraged to use the procedures that the employer has provided to report harassment they experience or observe. Id. at 806 ("[A] victim has a duty 'to use such means as are reasonable under the circumstances to avoid or minimize the damages' . . . .") (citation omitted). 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). This Court has repeatedly recognized and enforced this duty that Faragher and Ellerth place on employees to report harassment to management, and has been quick to relieve employers of liability for sexual harassment when the plaintiff failed to report the harassment promptly. In Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261 (2001), for example, the plaintiff's supervisor started harassing her sometime in September 1997 and continued to do so until mid-December, when the last incident occurred. Matvia never complained to management, and the company learned about the problem only because the supervisor himself reported it. This Court affirmed an order granting the defendant summary judgment, holding that Matvia had no excuse for not reporting the harassment. The decision stressed Matvia's duty to report the harassment promptly, without waiting to "investigate" or "gather evidence," and implied that her duty to report arose in September, when the harassment started. Id. at 270 (rejecting Matvia's argument that her duty to report arose only after the last, most egregious incident, stating that "[t]he only way we can assess whether Matvia 'failed to take advantage of any preventative or corrective opportunities provided by the employer,' is to examine Matvia's actions from the time the unwelcome conduct began") (citations omitted; emphasis added). The Court imposed this duty on the plaintiff notwithstanding her allegation that the offensive conduct was comparatively mild in September and October, and that most of the offensive conduct described in the Court's decision occurred in November and early December. Compare id. at 265 (listing seven undated incidents or behavior patterns) with Plaintiff's Amended Brief in Response to Bald Head Island Mgmt.'s Motion for Summary Judgment at 2-4, Matvia v. Bald Head Island Mgmt., Inc., No. 98-147 (E.D.N.C. Sept. 21, 1999) (available on PACER as Doc. 41) (stating that six of those seven incidents or behavior patterns occurred in November and/or early December). In this Court's earlier decisions, an essential correlate of this duty to report harassment promptly has been an assurance of statutory protection against retaliation. For example, when Lynne Barrett argued that her failure to report the harassment she experienced was reasonable because she feared retaliation, this Court rejected that excuse and reminded her that "Title VII expressly prohibits any retaliation against Barrett for reporting [her supervisor's] harassment." Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001). Similarly, when Matvia advanced her fear of retaliation to explain her failure to report, this Court admonished her: "The bringing of a retaliation claim, rather than failing to report sexual harassment, is the proper method for dealing with retaliatory acts." Matvia, 259 F.3d at 270 (citation omitted). By sharply circumscribing this statutory protection against retaliation, the majority decision in this case has left employees facing, as Judge King stated, a painful Catch-22: without relieving employees of the duty imposed on them by Faragher, Ellerth, Matvia, and Barrett to report harassment promptly, the majority has stripped them of the corollary protection against retaliation. The majority contends that employees face no dilemma because the reasonable-belief requirement turns on the sufficiency of the harassing conduct, while the second prong of the affirmative defense turns on whether the plaintiff unreasonably delayed reporting the conduct. Slip op. at 13. But these two factors are not analytically distinct, because the sufficiency of the harassing conduct depends as much on the timing (the pervasiveness and intensity) of the conduct as on its quantity and severity.<1> Whether a particular plaintiff's complaint to management is reasonably timely thus depends in turn on deciding when the harassing conduct had occurred frequently enough to support the requisite reasonable belief. The majority rule thus requires lay harassment victims to make demandingly intricate judgments. The effect of the majority decision will be to discourage employees from reporting harassment to management promptly because they are no longer protected against retaliation. This delayed reporting "would undermine the primary objective of Title VII [i.e., to prevent violations] and could result in more, not less, sexual harassment going undetected." Barrett, 240 F.3d at 267. Instead of encouraging employees to report harassing conduct before it becomes severe or pervasive, as the Supreme Court has dictated, the majority decision warns employees that if they want any protection against retaliation, they should not report the harassing conduct until they have a reasonable belief that the conduct already is severe or pervasive. The goal, as the Supreme Court has repeatedly stated, is to prevent hostile environments from occurring. That goal is served far more efficiently by encouraging employees to report the harassing conduct before it becomes severe or pervasive rather than by making them wait until it is already severe or pervasive.<2> The majority complains that Jordan is asking this Court to go beyond the statutory text and impose a "civility code." On the contrary, Jordan and the Commission are merely asking this Court to give full effect to the statutory text and implement the incentives the Supreme Court has called for. Section 704(a) bars employers from discriminating against any employee who opposes an unlawful practice, and Jordan was opposing a hostile environment by taking reasonable actions to prevent it. 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. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. ----, 126 S. Ct. 2405, 2414 (2006). CONCLUSION For the foregoing reasons, the Commission respectfully requests this Court to grant rehearing en banc and reverse the judgment of the district court. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER 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 does not exceed 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 3288 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 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 Dated: September 6, 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 131 S. Dearborn St., Ste. 2400 Chicago, IL 60603 William C. Sammons Tydings & Rosenberg LLP 100 E. Pratt St., 26th Fl. Baltimore, MD 21202 Douglas B. Huron Heller, Huron & Chertkof 1730 M St., N.W., Ste. 412 Washington, DC 20036 Paul D. Ramshaw Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7040 Washington, D.C. 20507 202-663-4737 September 6, 2006 See, e.g., Jennings v. Univ. of N.C., 444 F.3d 255, 269 (4th Cir. 2006) (one of the principal factors in assessing a hostile environment claim is "the frequency of the discriminatory conduct"), 269-72 (contrasting the allegations in Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996), where the offensive conduct occurred "over a seven-year period," with those in Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000), where the harassment occurred "more than thirty times in the first few weeks of plaintiff's employment") (citing other cases), 272-79 (dismissing plaintiff's hostile environment claim in significant part because plaintiff alleged only "two verbal comments directed at her over two years") (emphasis in original). Moreover, the victim often does not report the harassment. See, e.g., Matvia, 259 F.3d at 269-70 (victim did not report the harassment), and Barrett, 240 F.3d at 267-69 (same). In such cases, the employer will learn about the harassment sooner if co-workers who witness it report it. But co-workers who witness harassment often have not witnessed all the harassment the victim has experienced, and the majority rule will therefore delay reporting by witnesses even longer than reporting by victims. ************************************************************************* <> <1> See, e.g., Jennings v. Univ. of N.C., 444 F.3d 255, 269 (4th Cir. 2006) (one of the principal factors in assessing a hostile environment claim is “the frequency of the discriminatory conduct”), 269-72 (contrasting the allegations in Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996), where the offensive conduct occurred “over a seven-year period,” with those in Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000), where the harassment occurred “more than thirty times in the first few weeks of plaintiff’s employment”) (citing other cases), 272-79 (dismissing plaintiff’s hostile environment claim in significant part because plaintiff alleged only “two verbal comments directed at her over two years”) (emphasis in original). <2> Moreover, the victim often does not report the harassment. See, e.g., Matvia, 259 F.3d at 269-70 (victim did not report the harassment), and Barrett, 240 F.3d at 267-69 (same). In such cases, the employer will learn about the harassment sooner if co-workers who witness it report it. But co-workers who witness harassment often have not witnessed all the harassment the victim has experienced, and the majority rule will therefore delay reporting by witnesses even longer than reporting by victims.