Title VII of the Civil Rights Act of 1964 prohibits not only discrimination in employment on the basis of certain protected categories such as race, but also retaliation against an employee who opposes such discrimination. Opposition to discrimination in the workplace is thus considered a “protected activity” under Title VII. An employee may state a claim of retaliation by showing that he or she engaged in a protected activity, that he or she subsequently suffered an adverse action by the employer, and that some causal connection exists between the protected activity and the adverse action. However, the courts have long recognized the common sense rule that if the employer lacked knowledge of the employee’s alleged protected activity, any subsequent adverse action necessarily cannot be based on retaliatory motive. In the case of Strothers v. City of Laurel, Maryland, the U.S. Fourth Circuit Court of Appeals recently addressed the question of whether a Title VII claim of retaliation can survive summary judgment — even though the employee did not expressly complain to the employer, prior to her termination, that she was being subjected to scrutiny and discipline based on her race.

Felicia Strothers was hired by the City of Laurel as an administrative assistant. She reported to Community Services Officer Carreen Koubek, who began to take issue with Strothers’ repeated tardiness. Koubek issued a three-month performance evaluation to Strothers rating her attendance as unsatisfactory, which Strothers contested through an internal grievance. Koubeck subsequently reprimanded Strothers for her work attire, which prompted Strothers to submit a memorandum to Communications Director Peter Piringer in which she complained of “harassment” and “hostile environment” by Koubek’s actions. Piringer offered to investigate the matter, at which point Strothers responded that she just wanted Piringer to investigate the dress code issue. Significantly, in none of these complaints did Strothers specifically assert that she was subjected to such actions based on her race. One week after she submitted the memorandum complaint, the City terminated Strothers for tardiness.

Following her discharge, Strothers filed suit against the City alleging race discrimination and retaliation. The Maryland District Court dismissed the discrimination claim, and later granted summary judgment in favor of the City as to the retaliation claim. The court based its decision in part on the finding that there was no evidence “of overt and pervasive racial harassment from which Koubek and the City could have inferred that Strothers’ unadorned mention of ‘harassment’ referred to conduct prohibited by Title VII.” That is, the court concluded that the City could not have known, when it terminated Strothers, that her prior complaints were about racial harassment. Strothers appealed this decision to the Fourth Circuit Court of Appeals.

The Fourth Circuit reversed the lower court’s ruling, and concluded that “a reasonable jury could find that the City knew or should have known that Strothers was complaining about a Title VII violation and that her complaints caused her termination.” In reaching this decision, the Court found that: 1) the term “harassment” in Strothers’ complaint memorandum to Piringer is generally understood as a “term of art” suggesting unlawful conduct; and 2) Piringer once told Strothers that Koubek allegedly had stated that she “wanted someone of a different race” when they were considering job candidates for the position that Strothers was hired to fill. Based on this evidence, the Court in essence concluded that Strothers did not need to state that her complaints about Koubek were based on race – Piringer should have assumed that to have been the case, based on what he knew of Koubek’s alleged statement and her contentious work relationship with Strothers. The Court remanded the case back to the lower court, presumably for trial on the retaliation claim.

For employers, the Strothers case is instructive on this point: when internal complaints are received from employees regarding what they perceive to be unfair or harsh treatment, an appropriate investigation should always be conducted. Reports of unspecified harassment or hostile environment should always be closely reviewed. The employer should seek to determine not only whether its work rules are being applied correctly and consistently, but also and ultimately whether the employee’s concerns are based on race or other protected status or activity. The failure to recognize subtle signs of a protected activity, followed by an adverse action against the employee, can result in increased risk of liability in a retaliation case.

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