Leaving work sick is not protected activity under Title VII, 7th Cir. rules

Dive Brief:

A daycare and preschool and its third-party HR provider did not retaliate against an employee by firing her for leaving work for medical reasons, the 7th U.S. Circuit Court of Appeals ruled (Taylor-Reeves v. Marketstaff, Inc. No. 19-2620 (7th Cir. April 29, 2020)).
Renee Taylor-Reeves, a black woman, was an instructor at Bright Start Child Care & Preschool for two years. She became ill in April 2015 and told a supervisor that she could not teach the next day because she had a doctor's appointment. The next day, she asked the supervisor if she could go to the doctor immediately due to her worsening symptoms and was told "do what you need to do." She soon received an email from Marketstaff, the third-party provider, that she had been let go "for leaving the workplace without permission."
Taylor-Reeves sued, alleging her supervisor sexually harassed her and fired her for going to the doctor "despite not firing similarly situated 'non-black' teachers for staying home sick." A jury returned a verdict for the school in state court, and a district court dismissed her amended complaint alleging that her termination amounted to retaliation. On appeal, the 7th Circuit ruled that her claim was "not actionable" under the federal anti-discrimination laws Taylor-Reeves invoked. "As the district court noted," the court said, "this is not a protected activity."

Dive Insight:

Employers violate federal employment laws by retaliating against workers for engaging in some kind of protected activity. Generally, workers enter the realm of protected activity when they oppose discrimination or harassment, or request family and medical leave or disability accommodations. This means retaliation is not only outlawed by Title VII of the Civil Rights Act of 1964 — which Taylor-Reeves invoked — but by other statutes such as the Family and Medical Leave Act, the Americans with Disabilities Act and the Occupational Safety and Health Act. "Name the [employment] law, and it has a retaliation provision," HR Dive previously reported Fisher Phillips Regional Managing Partner Christine Howard saying.

Protected activity specific to Title VII may take the form of 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. There are a multitude of ways to engage in protected activity, so employers have many opportunities to retaliate against workers, Howard warned.

Employers will want to tread extra carefully when they discipline employees who have participated in protected activity, experts say. Protected activity does not insulate an employee from legitimate discipline, but timing alone can establish a prima facie case of retaliation, sources previously told HR Dive. Employers will need to be able to show evidence that they had reason other than retaliation to carry out discipline.

Similarly, discipline must doled out evenly, without respect to protected classes, experts say. Taylor-Reeves didn't raise such a discrimination claim in her pro se complaint, however.