Participation In Protected Activity Generally Need Not Be Based On A Good-Faith, Reasonable Belief To Be Protected, And Need Not Be Reasonable In The Manner Exercised, Although The Law Is Not Uniform On These Points
Courts Generally Hold That The Manner In Which Participatory Activity Is Exercised Need Not Be Reasonable To Be Protected, Although Again The Seventh Circuit Disagrees. As discussed in the last post, oppositional activity that is unreasonable (e.g., stealing the employer’s confidential information) is not protected from retaliation. This issue usually does not apply in “participation” cases, which instead usually involves activities such as filing EEOC charges. But, in Randolph v. ADT Sec. Services, Inc., NO. CIV.A. DKC 09-1790, 2011 WL 3476898 (D. Md. Aug. 8, 2011), the plaintiffs attached allegedly confidential information from their employer to a FLSA complaint with the Department of Labor. Id. at *2. When the employer found out, it fired the plaintiffs for disclosing “company confidential information to a third party.” Id. The plaintiffs sued for retaliation. The employer argued that the plaintiffs’ disclosure of its allegedly confidential information was not “reasonable,” and thus their complaints to the DOL were not protected. Id. at *5. The court rejected the employer’s argument, holding that – reasonable or not – as participatory activities, they were per se protected. Id. at *6. The court observed that:
The distinction between opposition and participation is important because the level of protection varies in participation clause and opposition clause cases. See Laughlin, 149 F.3d at 259 n. 4 (“[T]he scope of protection for activity falling under the participation clause is broader than for activity falling under the opposition clause.”). While protected activity under the opposition clause must be “reasonable,” the Fourth Circuit has specifically refused to apply any reasonableness requirement in the participation clause context. See Glover v. S. Carolina Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999) (“The plain language of the participation clause itself forecloses us from improvising such a reasonableness test.”); Kubicko, 181 F.3d at 554 (“Application of § 704’s participation clause . . . does not turn on the substance of an employee’s testimony.”); see also Cumbie v. Gen. Shale Brick, Inc., 302 Fed. Appx. 192, 194 (4th Cir. 2008) (“[W]hen an individual engages in activities constituting participation, such activity is protected conduct regardless of whether that activity is reasonable.”); Martin v. Mecklenburg Cnty., 151 Fed. Appx. 275, 279 (4th Cir. 2005) (explaining that it was “of no moment” that employee’s statements arguably bore no relevance to pending Title VII action, so long as statements were given in meeting related to that Title VII proceeding); accord Slagle v. Cnty. of Clarion, 435 F.3d 262, 268 (3d Cir. 2006) (listing cases establishing that participation clause activity is essentially an absolute protection).
Id. at *6 (footnote omitted).
The court’s ruling in Randolph is consistent with cases such as Pettway and Booker, supra. However, again the Seventh Circuit takes a different view. In Hatmaker v. Memorial Medical Center, 619 F.3d 741, 745-46 (7th Cir. 2010), cert. denied, 131 S. Ct. 1603 (2011), the Seventh Circuit held that even participatory activity must be reasonable to be protected.
