2d Circuit: Title VII Retaliation Claim Was Properly Dismissed; Amendment of Internal Procedures Was Not an “Unlawful Employment Practice”

In employment discrimination law, the term “unlawful employment practice” has a very specific meaning.

In Cooper v. New York State Department of Labor, 15-3392 (2nd Cir. April 26, 2016), the Second Circuit affirmed the dismissal of plaintiff’s retaliation claim under Title VII of the Civil Rights Act of 1964.

Here are the (summarized) facts:

In December 2012, [plaintiff] learned that the Governor’s Office of Employee Relations (GOER) had developed a plan to alter the means by which internal [Equal Employment Opportunity (EEO)] complaints were to be handled by state agencies, including the DOL. Cooper believed that the proposed changes materially conflicted with federal regulations because they would subject the EEO complaint response process to political pressure, increasing the likelihood that workplace discrimination would go unredressed. In a series of communications with her supervisors, Cooper brought these concerns to light. Cooper’s position carried the day—the GOER plan was altered to take account of her views—but, in April 2013, she was fired, allegedly in retaliation for having lobbied against GOER’s proposal.

Title VII prohibits conduct that constitutes an “unlawful employment practice”, which it defines specifically. It provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees … to discriminate against any individual … 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.

The court explained that “a plaintiff alleging unlawful retaliation may not recover unless he reasonably believed that the conduct he opposed ran afoul of one of these particular statutory proscriptions.”

Applying the law, the Second Circuit held:

The conduct she opposed—the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims—is not a “practice made an unlawful employment practice” by Title VII. Nor could Cooper reasonably have believed otherwise. In defining with great care and precision those behaviors that qualify as “unlawful employment practices,” the statute lays on employers no obligation to maintain any particular procedures for handling internal complaints. Indeed, the relevant provisions do not touch on the subject at all. …

That Cooper sought to ensure that hypothetical victims of discrimination received a fair shake does not mean that she possessed a good faith, reasonable belief[] that accepting GOER’s proposal would have qualified as an “unlawful employment practice” under the statute. Simply put, her argument stretches our precedents and the text of Title VII well past their breaking points.

Although “mindful that when an employer punishes an employee for conduct intended to secure equality in the workplace, it does little to further—and may hinder—Title VII’s primary objective of eradicating invidious discrimination in employment,” the court held that it “may not, in the name of advancing general aims, ignore Congress’s choice to carefully circumscribe the universe of ‘unlawful employment practices’ —and thus to circumscribe the universe of conduct protected from retaliation.”

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