Dive Brief:
- A Georgia county fired a tax official because of his poor job performance, not because of his complaints of "reverse discrimination" based on race, the 11th U.S. Circuit Court of Appeals ruled (Fitzgibbon v. Fulton County, Georgia, The Fulton County Board of Assessors, No. 20-11583 (11th Cir., Jan. 11, 2021)).
- While serving as chief tax appraiser, the plaintiff began experiencing "difficulties producing the tax digest in a timely and accurate manner," which created a two-month delay in tax collection, according to the court's opinion. The Board of Assessors held a closed meeting to discuss his performance and concluded it was "extremely concerned" about the problems he had caused. Complaints arrived from other workers in the same time period that the tax appraiser and other managers were creating a racially hostile work environment, prompting the HR and diversity departments to launch investigations. When the plaintiff received a copy of HR's investigation, he replied in an email that he was experiencing "reverse discrimination" based on race. The day before the tax appraiser sent this email, a member of the Board of Assessors recommended the county terminate him. About two weeks later, he was fired.
- The tax appraiser sued, alleging, among other things, retaliation under Title VII of the Civil Rights Act of 1964. A district court found that he could not prove that his email alleging "reverse discrimination" was the but-for cause of his termination as his termination "was already in motion before his participation in the alleged protected activity." The appeals court affirmed. Relying on a 2006 case, it opined that "in a retaliation case, when an employer contemplates an adverse employment action before an employee engages in protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation."
Dive Insight:
Title VII forbids employers from punishing job applicants or employees "for asserting their rights to be free from employment discrimination," according to the U.S. Equal Employment Opportunity Commission (EEOC).
Protected activity can include talking with a supervisor about discrimination, answering questions during an employer investigation of alleged harassment, and refusing to carry out instructions that would incur discrimination, and among other actions, among other actions. Additionally, "other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it," the federal agency has noted.
The court declined to decide whether the tax appraiser's email constituted protected activity — "even assuming that it [did, the plaintiff] has not shown that he can meet his burden of establishing but-for causation." Still, informal complaints may constitute protected activity under Title VII, the 11th Circuit previously noted in a February 2020 case.
While employees who engage in protected activity are not shielded from legitimate discipline, a close relationship in time between the protected activity and an adverse employment action may suggest unlawful retaliation. A Philadelphia fitness instructor fired hours after letting her bosses know that she had filed a complaint with EEOC recently was allowed to proceed with her claims of retaliation and bias, for example. On the other hand, the 11th Circuit has said a termination that occurred eight months after a worker filed an EEOC complaint wasn't retaliation. But there is no "bright line" rule for such timing.