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The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
20.320 Reasonable belief requirement
In Clark County School Dist. v. Breeden,
532 U.S. 268, 121 S.Ct.
1508 (2001), the Supreme Court held that the facts of this case cannot support a
claim of retaliation. Breeden, her male supervisor and a male co-worker were in
a meeting reviewing psychological evaluations of four job applicants. One report
noted that an applicant had once told a co-worker: "I hear making love to you is
like making love to the Grand Canyon." The supervisor read the comment aloud and
commented that he did not know what it meant. The male co-worker said: "I'll
tell you later," and both men chuckled. Breeden claims she was retaliated
against for complaining of this conduct. This complaint was not "protected
activity" because no reasonable person could have believed that the incident
violated Title VII.
In Benoit v. Technical Mfg. Corp., 331 F.3d 166 (1st
Cir. 2003), the court explained:
the employment activity or practice that [the plaintiff]
opposed need not be a Title VII violation so long as [the plaintiff] had a
reasonable belief that it was, and he communicated that belief to his
employer in good faith.
Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 261-62 (1st Cir. 1999).
In McMenemy v. City of Rochester, 241 F.3d 279 (2d
Cir. 2001), the court held:
We held in
Wimmer that the employment practices
opposed by the plaintiff need not have "actually amounted to a violation of
Title VII." Id. at 134. Rather, the plaintiff must have had a "good
faith, reasonable belief that the underlying challenged actions of the
employer violated the law." Id. (quoting Manoharan v. Columbia
Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988)) (internal quotation marks omitted).
Moore v. City of Philadelphia, 461 F.3d 331 (3d
Cir. 2006), the court explained:
Whether the employee opposes, or participates in a
proceeding against, the employer's activity, the employee must hold an
objectively reasonable belief, in good faith, that the activity they oppose
is unlawful under Title VII.
Clark County v. Breeden, 532 U.S. 268,
271 (2001) (per curiam) (rejecting retaliation claim where "[n]o reasonable
person could have believed that" the underlying incident complained about
"violated Title VII's standard" for unlawful discrimination);
Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996)
(retaliation plaintiff must "act under a good faith, reasonable belief
that a violation existed").
Jordan v. Alternative Resources Corp., 458 F.3d 332
(4th Cir. 2006), the court explained:
we have . . . held that opposition activity is protected
when it responds to an employment practice that the employee reasonably
believes is unlawful.
EEOC v. Navy Fed. Credit Union, 424 F.3d
397, 406-07 (4th Cir. 2005). Because the analysis for determining whether an
employee reasonably believes a practice is unlawful is an objective one, the
issue may be resolved as a matter of law. See
Clark County Sch.
Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam) (resolving the
objective reasonableness of Title VII plaintiff's beliefs through the
summary judgment procedure).
Jordan, 458 F.3d at __ (italics in original and
In Byers v. Dallas Morning News, Inc., 209 F.3d 419
(5th Cir. 2000), the court explained:
Byers need not prove that [the employer's] practices were
actually unlawful, but only that he had "a reasonably belief that the
employer was engaged in unlawful employment practices." Payne v.
McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir.
1981), cert denied 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866
(1982) (emphasis added); see also Harvey v. Chevron USA,
Inc., 961 F.Supp. 1017, 1032 (S.D. Tex. 1997) (holding that a showing of
subjective good faith alone is insufficient).
In Johnson v. University of Cincinnati, 215 F.3d 561
(6th Cir. 2000), the court explained the opposition clause:
The EEOC has qualified the scope of the opposition clause
by noting that the manner of opposition must be reasonable, and that the
opposition be based on "a reasonable and good faith belief that the opposed
practices were unlawful." Id.
However, the court also explained the participation clause:
The "exceptionally broad protections" of the
participation clause extends to persons who have "participated in any
manner" in Title VII proceedings. Pettway v. American Cast Iron Pipe Co.,
411 F.2d 998, 1006 (5th Cir. 1969). Protection is not lost if the employee
is wrong on the merits of the charge, Womack v. Munson, 619 F.2d
1292, 1298 (8th Cir. 1980), cert. denied, 450 U.S. 979, 101 S. Ct.
1513, 67 L. Ed. 2d 814 (1981), nor is protection lost if the contents of the
charge are malicious or defamatory as well as wrong. Pettway, 411
F.2d at 1007. Thus, once activity in question is found to be within the
scope of the participation clause, the employee is generally protected from
Booker, 879 F.2d at 1312.
Johnson, 215 F.3d at ___.
In Firestine v. Parkview Health System, Inc., 388 F.3d
229 (7th Cir. 2004), the court explained:
In order to establish that she had engaged in a protected
activity, Firestine was required to demonstrate that she complained about an
act that she " 'reasonably believed in good faith . . . violated Title VII.'
Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002)
(quoting Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195 (7th
Cir. 1994)); see Dey v. Colt. Constr. & Dev. Co., 28
F.3d 1446, 1457-58 (7th Cir. 1994). Only a groundless claim "resting on
facts that no reasonable person possibly could have construed as a case of
discrimination" could not constitute a statutorily protected activity.
Fine, 305 F.3d at 752. And a mistake as to the merits of a complaint
does not cost an employee the protection of Title VII.
Caterpillar, Inc., 359 F.3d 885, 892 (7th Cir. 2004).
Peterson v. Scott County, 406 F.3d 515, 525 n.3 (8th
Cir. 2005)("plaintiffs who reasonably believe that conduct violates Title VII
should be protected from retaliation even if a court ultimately concludes that
plaintiff was mistaken in her belief.").
Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the
With respect to [whether the plaintiff engaged in
protected activity], "opposition clause protection will be accorded whenever
the opposition is based on a reasonable belief that the employer has
engaged in an unlawful employment practice." Moyo v. Gomez, 40 F.3d
982, 984 (9th Cir. 1994) (internal quotes omitted) (emphasis in original).
Hertz v. Luzenac America, Inc., 370 F.3d 1014 (10th
Cir. 2004), the court explained:
A plaintiff need not convince the jury that his employer
had actually discriminated against him; he need only show that when he
engaged in protected opposition, he had a reasonable good-faith belief that
the opposed behavior was discriminatory. See
Crumpacker v. Kansas
Dep't of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003).
Crumpacker v. Kansas, Dept. of Human Resources, 338
F.3d 1163 (10th Cir. 2003), the court explained:
The Supreme Court, however, recently rejected by
implication any interpretation of Title VII that would permit plaintiffs to
maintain retaliation claims based on an unreasonable good-faith belief that
the underlying conduct violated Title VII.
Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 269 (2001).
In George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005),
the court explained:
We have held that "an employee seeking the protection of
the opposition clause [must] demonstrate a good faith, reasonable belief
that the challenged practice violates Title VII." Parker v. Balt. & Ohio
R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981).