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Recent Sixth Circuit Decision Expands the Scope of "Protected Activity" Under Title VII Discrimination and May Lead to a "New Breed" of Cases

In a case entitled EEOC v New Breed Logistics, the Sixth Circuit Court of Appeals affirmed the district court's denial of the defendant-employer's motions for judgment as a matter of law or a new trial following the jury's determination that New Breed's supervisor engaged in sexual harassment and retaliation under Title VII. During the trial, plaintiff presented evidence, that the appeals court deemed sufficient, showing New Breed's supervisors were cognizant of the sexual harassment when they terminated each employee, and that the employees' "protected activity" constituted "the but-for cause of the adverse employment actions taken against any claimant." Further, New Breed was not entitled to a new trial on the sexual harassment issue because the supervisor's harassment caused a "tangible employment action for which New Breed should be vicariously liable[.]"

In its motions, defendant argued that the employees could not establish their prima facie cases because they had not shown that they had engaged in "protected activities" before their termination. In rejecting the employer's position, the Court of Appeals determined that there was sufficient evidence that the "protected activity," making a complaint to a harassing supervisor to stop the harassment, played a part in each of the employees' terminations. This is the first time the Sixth Circuit has addressed whether a complaint to a harassing supervisor to stop the harassment constituted a protected activity under Title VII. The Court of Appeals held that an employee's complaint to the harassing supervisor constitutes protected activity because Title VII's anti-retaliation provision does not specify to whom the victim must voice his or her opposition to the harassment. Notably the Court of Appeals rejected a decision from the Fifth Circuit Court of Appeals that held the opposite.

The court also affirmed the punitive damages award, holding that record had sufficient evidence that the supervisor "acted with malice or reckless indifference to federally protected rights in retaliating against the claimants."

In light of the split in the decisions between the Fifth and Sixth Circuit regarding the scope of "protected activities," this issue may be ripe for the United States Supreme Court's review. 

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