Are Employees Protected Against Retaliation When They Make An External Complaint To A Third-Party About Discrimination Against A Non-Employee?
Under the Florida Civil Rights Act (“FCRA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), employees are protected against retaliation for opposing workplace discrimination or harassment on the basis of race, national origin, sex, pregnancy, religion, disability, or age. In most cases, an employees’ opposition to discrimination or harassment in the workplace takes the form of an internal complaint by the employee to a supervisor or manager. When an employee makes an internal complaint about discrimination or harassment in the workplace, the employee is usually complaining about discrimination or harassment against him or herself personally.
However, the FCRA’s and Title VII’s protection against retaliation is not limited to circumstances where employees make an internal complaint about discrimination or harassment against themselves in workplace. Rather, employees are also protected against retaliation for making an internal complaint about discrimination or harassment against individuals who are not employed by their employer. For example, employees are protected against retaliation for making an internal complaint about sex discrimination against their employer’s customers, contractors, or subsidiary corporations. Likewise, employees are protected against retaliation for making an internal complaint about race discrimination against individuals seeking employment with their employer.
Moreover, the FCRA’s and Title VII’s protections against retaliation are not limited to circumstances where employees make an internal complaint about their employer’s discriminatory employment practices. Rather, employees are also protected against retaliation for making an external complaint to a third-party about their employer’s discriminatory employment practices. For example, employees are protected against retaliation for writing letter to a newspaper or customer protesting against discrimination by their employer. Likewise, employees are protected against retaliation for notifying a job applicant that he or she was a victim of discrimination by their employer.
A recent case filed by the U.S. Equal Emp oyment Opportunity Commission (“EEOC”), U.S. Equal Employment Opportunity Commission v. Regis Corporation, in the U.S. District Court, Eastern District of North Carolina shows how Florida and federal law protect employees who make an external complaint to a third-party about discriminatory hiring decisions by their employer. In that case, the EEOC brought suit against Regis Corporation (“Regis”) claiming that Hope Hunt (“Hunt”) and Annie Mae Locklear (“Locklear”) were fired in retaliation for opposing race discrimination by Regis in a hiring decision.
In June 2014, Locklear, who was the salon manager, began interviewing candidates for a hair stylist position at Regis’ salon in North Carolina. After an African-American candidate was interviewed for the position, a co-worker told Hunt, who worked as a hair stylist at the salon, and Locklear that she did not want an African-American working at the salon. Before the position was filled, Locklear stepped down as salon manger and began working as a hair stylist. Locklear was replaced as salon manager by the co-worker who made the discriminatory remark about not wanting an African-American working at the salon. In July 2014, Locklear and Hunt told the African-American candidate that the new salon manager did not want to hire her because of her race. Shortly thereafter, the new salon manager hired a Native American candidate for the position. In August 2014, Regis fired Locklear and Hunt for allegedly lying when they told the African-American candidate she was not hired because of her race. The EEOC claimed that Regis violated Title VII by firing Locklear and Hunt in retaliation for opposing the discriminatory hiring practice of Regis.
On June 9, 2016, the EEOC and Regis entered into a Consent Decree wherein Regis agreed to pay Locklear and Hunt $90,000 to resolve the case. Regis also agreed to provide training to all of its supervisors, managers, and employees at its North Carolina and South Carolina salons on Title VII’s prohibition against retaliation in the workplace. Regis was also required to provide the EEOC with written notification for a two-year period as to the identities of all individuals who opposed any employment practice made unlawful under Title VII, including the disclosure of whether the employment status of any such individual changed and a detailed statement explaining why the individual’s employment status changed. The EEOC further compelled Regis to change all references in its electronic personnel records for Locklear and Hope from “terminated” to “voluntarily resigned.”
Because Locklear and Hunt made an external complaint to a third-party who was not employed by Regis, the EEOC had to establish that Regis knew of their complaint to the African-American candidate before Regis terminated their employment. In other words, when an employee is claiming retaliation for making an external complaint to a third-party who was not employed by the employer, the employee must establish that the employer acquired knowledge of the complaint before the retaliatory adverse employment action occurred. The EEOC initially satisfied the knowledge requirement by alleging that Regis fired Locklear and Hunt because they purportedly lied when they told the African-American candidate that she was not hired because of her race. Thus, the EEOC claimed that Regis possessed the requisite knowledge because Locklear and Hunt were fired on grounds that their complaint to the African-American candidate was a lie.
We have extensive experience representing employees who have been retaliated against for complaining about discrimination or harassment in the workplace. If you have been retaliated against for complaining about discrimination or harassment in the workplace, or have questions regarding your legal rights when making a discrimination or harassment complaint, please contact our office for a free consultation.