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The “opposition clause” of Title VII of the Civil Rights Act of 1964 prevents covered employers from retaliating against employees because they oppose a practice which is unlawful under the Act.  Accordingly, an employer can be liable for terminating an employee for complaining about allegedly discriminatory conduct.  A recent en banc case with the United States Court of Appeals for the Eleventh Circuit has affirmed the boundaries of the opposition clause and concluded that an employer need not tolerate an employee’s unreasonable opposition activities that interfere with her job.  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims in include alleged employment retaliation as well as claims for overtime wages and other related claims.

Title VII makes it unlawful for qualified employers to discriminate against employees on the basis of the employees’ race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a)(2).  An employee is protected from retaliation by the employer when he participates in a proceeding concerning claims under Title VII, or, opposes an employment practice which he reasonably believes to be in violation of Title VII.  The anti-retaliatation provision of Title VII states that “[i]t shall be an unlawful employment practice for an employer to discriminate against [an employee], because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a).

When employees sue and claim that they were retaliated against because of a “protected activity,” employment lawyers should generally defend by showing that the allegedly retaliatory conduct occurred for a legitimate, non-discriminatory reason.  An “employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”  Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11th Cir.1984).  For the employee’s claims to survive, he must show that the employer’s reasoning is pretext for an intention to retaliate. “[A] reason is not pretext for [retaliation] ‘unless it is shown both that the reason was false, and that [retaliation] was the real reason.’” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344 (11th Cir. 2007).  “Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012 (11th Cir. 2000).

An employer need not kowtow to an employee who becomes disruptive or fails to perform his duties because of unreasonable expressions of opposition. “[I]t is well established that the protection afforded by [Title VII’s opposition clause] is not absolute.” Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397 (11th Cir. 1989). “[O]therwise protected oppositional conduct can fall outside Title VII’s protection if the conduct so interferes with an employee’s performance of her job duties that it renders her ineffective in the position in which she is employed.”  Gogel v. Kia Motors Mfg. of Georgia, Inc., 16-16850, 2020 WL 4342677 (11th Cir. July 29, 2020). Courts will not protect an employee’s oppositional conduct which is unreasonable.  When evaluating the reasonableness of employee conduct, the courts “balanc[e] the purpose of the statute and the need to protect individuals asserting their rights thereunder against an employer’s legitimate demands for loyalty, cooperation and a generally productive work environment.”  Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397 (11th Cir. 1989).

Employees must still act within the confines of their proscribed duties.  Rollins v. State of Fla. Dept. of Law Enf’t, 868 F.2d 397 (11th Cir. 1989) (holding that an employee may be terminated for filing an unreasonable number of grievances and this is not a violation of the opposition clause).  An employee whose jobs involves administering, resolving, or defending against Title VII complaints is not given free reign to act against the employer.  This is so because his job involves responding to these complaints.  “Failing to follow prescribed administrative procedures is not a statutorily protected activity. Title VII cannot be held to immunize an employee from all consequences of his behavior merely because part of his job happens to require the handling of discrimination complaints.”  Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. 1980).  Recruiting other employees to sue their employer can also justify a lawful termination.  Jones v. Flagship International, 793 F.2d 714, 716 (5th Cir. 1986) (finding that the termination of in-house legal counsel because she recruited employees to join her case was lawful, explaining that the plaintiff’s “right to express her grievances and promote her own welfare did not depend on others joining in her suit”).

In Gogel v. Kia Motors Mfg. of Georgia, Inc., 16-16850, 2020 WL 4342677 (11th Cir. July 29, 2020), the plaintiff was a human resources manager who complained about her employer’s allegedly discriminatory policies.  The employer was a subsidiary of Kia, the Korea-based automobile manufacturer. The plaintiff claimed in a charge of discrimination to the EEOC that the employer favored its Korean employees and forced female employees to perform demeaning gendered tasks.  Particularly, the employee had been required to pour wine for male executives and hold flowers even though she held a position of authority within the company.  The complaint did not appear to affect the employee’s growth with the company; she received a promotion and a significant discretionary bonus after the complaint was filed.  However, the employer later received notice that another employee with similar complaints also filed a charge with the EEOC, and the charge had suspiciously been faxed from the same law firm that represented the employee.  One of the employee’s coworkers soon after reported to the employer’s management that the employee inexplicably had been regularly meeting with those two other employees who had made EEOC complaints, while they were at the office.  This was particularly disconcerting to the employer, because the employee’s role was to resolve employment disputes – not to instigate litigation against her own employer.  The employee was terminated for instigating employees to sue, and Gogel filed a claim of retaliation.  The district court found that the employee was properly fired and Gogel agreed on appeal. “[A]n employee’s oppositional conduct loses its protection when the manner chosen to voice that opposition so interferes with the employee’s performance of her job that it renders her ineffective in the position for which she was employed.”  Id. 

While complaints and other reasonable opposition to discriminatory conduct is protected under Title VII, unreasonable and other subversive disruptive behavior is not.   Gogel shows that an employer need not be held hostage by disruptive employees simply because the disruption is based upon a complaint of discrimination.  Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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