Click For Protected Activity

By Ted Olsen

Title VII protects employees from retaliation for “opposing” an employer’s alleged discrimination, and opposition includes participating in an employer’s investigation. But according to one recent court decision, just forwarding an e-mail to higher management without comment is protected activity, if the forwarded message is a subordinate’s complaint about a fellow worker’s sex-related behavior. Hiter v. Multiband EC Inc., Case No. 11-1282 (C.D. Ill. Jan. 24, 2013.) In this case, a Warehouse Manager with very limited disciplinary or supervisory authority, received an e-mail message from one of her direct reports, complaining, among other things, that two fellow workers engaged in “shameless flirting,” conversations about their personal lives, and comments regarding their sexual activities. The message described the behavior as “high school drama.” Following her usual routine, the Warehouse Manager forwarded the message to her boss’s supervisor without any comment or editorial.

The employer discharged the Warehouse Manager and she raised a retaliation claim. The Court ruled that she could proceed with the claim, because a jury could reasonably find that her mere forwarding of the “high school drama” e-mail was protected opposition to a hostile work environment.

If this court’s ruling holds up, even routinely forwarding a complaint is protected activity, so, employers, beware not to shoot the messenger.