Dive Brief:

• A Nebraska worker’s complaint to company officials that a colleague was subjected to racial bias wasn’t protected activity because she didn’t have an "objectively reasonable basis" for believing that a Title VII violation had occurred, the 8th U.S. Circuit Court of Appeals held (Gibson v. Concrete Equipment Company, Inc., No. 18-3009 (8th Cir., June 3, 2020).
• Amanda Gibson sued Concrete Equipment Co. Inc. alleging, among other things, retaliation under Title VII of the Civil Rights Act of 1964. She witnessed an African-American co-worker being reprimanded for using a vending machine during work. Gibson believed the man was reprimanded because of his race and complained via a letter that contained "profane language," the court said; the employer then fired her. 
• A federal district court granted summary judgement to the employer and the 8th Circuit affirmed. Title VII requires that an employee suffer an adverse employment action such as a cut in pay or benefits, the court said. In addition, for a complaint to qualify as a protected activity, the individual making the complaint must have an "objectively reasonable belief that an actionable Title VII violation has occurred." Because the co-worker's write-up didn’t change the terms and conditions of his employment, it wasn’t an adverse employment action and Gibson didn’t have an "objectively reasonable basis" for believing that a Title VII violation had occurred, the appeals court said.

Dive Insight:

Protected activity, the Gibson court noted, is "opposition to employment practices prohibited by Title VII." Protected activity includes complaining or threatening to complain about discrimination based on one of the law's protected classes or participating in an investigation into someone else's complaint. When workers engage in protected activity, they are protected against retaliation by the employer because almost all employment laws have an anti-retaliation provision.

However, while protected activity does not insulate an employee from legitimate discipline, timing alone can establish a prima facie case of retaliation, sources previously told HR Dive. If employers discipline an employee shortly after they have engaged in protected activity, then employers need to be able to show that they had reason other than retaliation to carry out the discipline.

The Gibson court noted that, although Gibson’s firing followed closely after her complaint alleging race discrimination, the letter and picture she submitted were viewed as offensive because they "contained extremely offensive and sexualized words" and violated the employer’s harassment policy forbidding sexually suggestive pictures or written words.