5th Cir.: No retaliation in Walmart's firing of worker who reported sex harassment

UPDATE: Aug. 31, 2020: Walmart provided the following statement on the 5th Circuit's decision: "We don't tolerate retaliation and we appreciate that the court unanimously agreed Ms. Brown's termination was for legitimate business reasons."

Dive Brief:

Walmart did not violate Title VII of the 1964 Civil Rights Act when it fired an assistant manager at one of its Mississippi stores after she reported her supervisor for sexual harassment, the U.S. Court of Appeals for the 5th Circuit ruled earlier this month (Brown v. Wal-Mart Stores East L.P., et al, No. 19-60719 (5th Cir. Aug. 14, 2020)).
Per court documents, the assistant manager originally reported incidents of sexual harassment involving her supervisor to a project manager for associate relations. She then used Walmart's ethics hotline to report these claims as well as additional allegations of sexual harassment by the supervisor. Following this, Walmart fired the assistant manager on the basis that she violated two company policies: Walmart's employee disciplinary policy and its policy on approaching a shoplifting suspect.
The assistant manager sued Walmart for retaliation and wrongful termination in violation of Title VII's anti-retaliation provision. A district court granted summary judgment in favor of Walmart. The 5th Circuit affirmed, stating that "a reasonable jury could not find that [the supervisor's] actions were the but-for cause of Wal-Mart's termination of [the assistant manager] based on the record before us."

Dive Insight:

Title VII prohibits retaliation and related conduct against an individual because the individual engaged in protected activity, according to the U.S. Equal Employment Opportunity Commission.

Workers seeking to claim that an employer retaliated against them in violation of Title VII must prove that any adverse retaliatory action occurred "but for" the cause of the retaliation, sources previously told HR Dive. In Brown, the 5th Circuit found that the assistant manager did not present sufficient evidence that Walmart would not have terminated her but for her reporting of her supervisor’s sexual harassment.

Previous cases have yielded similar wins for employers. In April, the 3rd Circuit upheld summary judgment for food manufacturer World Flavors after an employee sued alleging that he had been fired after complaining about sexual harassment. But the court held that he was instead fired before reporting the harassment, meaning that a reasonable juror could not find that a pretext for discriminatory retaliation, even if the incidents the employee suffered were "highly offensive," in the words of the court.

Employers may need to better prepare those in charge of investigating harassment complaints. A 2019 study of simulations conducted by training platform pelotonRPM found that 39% of managers and leaders who were approached by employees with harassment, bias, discrimination or bullying complaints didn't ask questions to identify potential witnesses to an alleged incident. Additionally, more than half of participants didn't explain the anti-retaliation policy or define retaliatory behaviors to the complainant, witnesses or the alleged perpetrator.