Making faces doesn't count as retaliation, 5th Cir. says

Dive Brief:

A manager did not retaliate against an employee by making faces at him, the 5th U.S. Circuit Court of Appeals ruled (Fisher v. Bilfinger Industrial Services Incorporated, No. 20-30265 (5th Cir., June 24, 2021)).
A welder at a civil engineering company claimed he was subject to racial harassment in violation of Title VII of the Civil Rights Act of 1964. An affidavit stated that his boss used a racial slur, and he asserted the boss repeatedly called him and another Black employee "boy." The worker alleged he experienced retaliation after flagging the misconduct.
The 5th Circuit affirmed a lower court's ruling of summary judgment for the employer. The court said his boss' use of a racial slur, while "appalling," could not support his claim because he did not hear him say this. And the manager's infrequent use of abusive language falls "outside of Title VII's purview," the court ruled. Similarly, the worker's claims of retaliation failed because making faces "amounts to a frivolous claim that does not implicate Title VII," the court said.

Dive Insight:

Retaliation claims are common. They come up more than any other type of workplace discrimination claim; in 2019, retaliation charges made up more than half of all charges received by the U.S. Equal Employment Opportunity Commission.

For retaliation to occur, an employee must first engage in some kind of protected activity, which usually takes the form of opposition to discrimination or harassment, attorneys previously told HR Dive. Retaliation occurs when an employer takes an adverse action against someone who has been involved in protected activity.

An employer may retaliate against someone who has complained about harassment by giving the worker a performance review that's lower than necessary, according to EEOC. Or the employer may transfer the worker to a less desirable post, increase scrutiny over an employee or make a person's work more difficult. Whatever the specifics of the situation happen to be, it's retaliation if the action would reasonably or likely keep a worker from making a discrimination claim, attorneys say.

The 5th Circuit's opinion touches on another common topic concerning Title VII: hostile work environments. Harassment becomes unlawful when it is severe or so pervasive that it renders a workplace "intimidating, hostile or abusive," EEOC says. The 5th Circuit previously allowed claims of a hostile work environment to move forward because the alleged harassment occurred on a near daily basis. But the 9th Circuit ruled last spring that two derogatory comments about a plaintiff's disability did not suffice to create a hostile work environment.