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Tenth Circuit expands ability to file retaliation claims under Title VII

Title VII is the nation’s leading anti-discrimination law. It also prohibits employers from retaliating against employees who oppose unlawful acts such as discrimination. But what if the employee is opposing an act that isn’t actually unlawful discrimination? What constitutes an unlawful discriminatory act prohibited by Title VII can be a surprisingly complicated legal issue.

In a recent case, titled Reznik v. inContact, Inc., the plaintiff sued for retaliation because, she claimed, she’d been retaliated against for opposing discrimination against foreigners who worked for the company in that other country (or as the Court said “aliens”). However, being a foreigner who works in a foreign country is not itself a protected class under Title VII. However, the Tenth Circuit held the plaintiff wasn’t required to prove she opposed an actual violation. Rather, the test is whether the employee both subjectively and objectively believed the practice was prohibited by Title VII.  To prove her subjective believe, she needed to prove she herself really had believed it was prohibited by Title VII. To prove it was the objective element, she needed to prove that a reasonable employee would have thought it was prohibited by Title VII.

We adopt an objective reasonableness inquiry that considers the law against what a reasonable employee would believe, not “what a reasonable labor and employment attorney would believe.”

Because Title VII protects both “race” and “national origin,” a reasonable employee, the Tenth Circuit held, might think those protected classes include being a foreigner who works in a foreign country.

The decision drew a sharp dissent that would have held the company was entitled to rely on the clear language of Title VII, which does not protect foreigners working in a foreign country.

The statutory text of Title VII expressly excludes aliens abroad. 42 U.S.C. § 2000e-1(a). Thus, no employer reasonably would have understood that Title VII prohibited the conduct Plaintiff opposed. Measuring one employee’s subjective good-faith belief that Title VII prohibits an employer from making offensive comments about aliens abroad against the text of Title VII, which precludes application to aliens abroad, I would hold that Plaintiff lacked an objectively reasonable belief that Defendant’s conduct constituted unlawful discrimination and affirm the district court.

Because this distinction is both significant and poses a clear question of law that has not been addressed by the Supreme Court, it is the kind of issue that may, if appealed, draw either reconsideration by the full bench of the Tenth Circuit and/or review by the Supreme Court. Unless either occurs, the majority opinion stands as law in the Tenth Circuit.