Fourth Circuit Issues Opinions In Divided 5-5 Ruling On Petition For Rehearing En Banc In Contentious Title VII Case Alleging Retaliatory Discharge
Today the Fourth Circuit issued opinions in Jordan v. Alternative Resources Corp, a contentious Title VII case involving an alleged retaliatory discharge.
Jordan, an African American employee, allegedly was fired after reporting to management an exceedingly offensive, racist remark made in the workplace by a coworker. He sued his employer for retaliation in violation of Title VII.
The district court dismissed the complaint for failure to state a claim. A Fourth Circuit panel affirmed in a split decision in May 2006 (Judge Niemeyer authored the majority opinion; Judge King dissented). The panel then granted rehearing and vacated its decision, but ultimately produced the same result in a revised opinion. The employee petitioned for rehearing en banc, and after Judges Motz and Williams were disqualified, the remaining 10 judges split 5-5 on the petition. Because en banc rehearing cannot be granted unless a majority of qualified active judges vote "yes" (see FRAP 35(a)), the tie went to the employer. The judges who voted to rehear the case en banc: King, Michael, Traxler, Gregory, and Wilkins.
Title VII says, "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." Courts have held that an employee's opposition activity (e.g., report to management) is protected when it responds to an employment practice that the employee reasonably believes is unlawful, even if it isn't in fact unlawful. In determining that Jordan didn't reasonably believe he was complaining of a hostile work environment made unlawful by Title VII, the majority reasoned that "the mere fact that one's coworker has revealed himself to be a racist is not enough to support an objectively reasonable conclusion that the workplace has likewise become racist."
According to Judge King's dissent, the majority decision places employees in a "Catch-22" and "untenable position" by "requiring them to report racially hostile conduct, but leaving them entirely at the employer's mercy when they do so."
Jordan, an African American employee, allegedly was fired after reporting to management an exceedingly offensive, racist remark made in the workplace by a coworker. He sued his employer for retaliation in violation of Title VII.
The district court dismissed the complaint for failure to state a claim. A Fourth Circuit panel affirmed in a split decision in May 2006 (Judge Niemeyer authored the majority opinion; Judge King dissented). The panel then granted rehearing and vacated its decision, but ultimately produced the same result in a revised opinion. The employee petitioned for rehearing en banc, and after Judges Motz and Williams were disqualified, the remaining 10 judges split 5-5 on the petition. Because en banc rehearing cannot be granted unless a majority of qualified active judges vote "yes" (see FRAP 35(a)), the tie went to the employer. The judges who voted to rehear the case en banc: King, Michael, Traxler, Gregory, and Wilkins.
Title VII says, "It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." Courts have held that an employee's opposition activity (e.g., report to management) is protected when it responds to an employment practice that the employee reasonably believes is unlawful, even if it isn't in fact unlawful. In determining that Jordan didn't reasonably believe he was complaining of a hostile work environment made unlawful by Title VII, the majority reasoned that "the mere fact that one's coworker has revealed himself to be a racist is not enough to support an objectively reasonable conclusion that the workplace has likewise become racist."
According to Judge King's dissent, the majority decision places employees in a "Catch-22" and "untenable position" by "requiring them to report racially hostile conduct, but leaving them entirely at the employer's mercy when they do so."
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