How Many “Heil Hitlers” Does It Take to Claim Title VII?

by Melissa Tsynman

A recent judgment by the Fifth Circuit Court of Appeals stirred up quite some controversy in the labor and employment world, and rightfully so.[1] Courtney Satterwhite, a former Assistant City Controller V for the City of Houston, was demoted two pay grades after reporting his supervisor for using the phrase “Heil Hitler” at a meeting.[2] After the District Court granted summary judgment to the city because “Satterwhite failed to establish a causal link between Satterwhite’s activities and his demotion,”[3] Satterwhite took his case on up to the Court of Appeals, whose opinion has many of us scratching our heads:

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII.[4]

Wait… what?! Let’s backtrack for a second. To begin, the Retaliation section under Title VII of the Civil Rights Act of 1964 offers protection for employees who oppose unlawful actions by employers, making it illegal for those employers to retaliate by way of demotion or termination.[5] However, the activity the employer engaged in must be one that is protected under Title VII, and there must be a causal link “between the protected activity” and the retaliation against the employee.[6] Ensuing the incident, Satterwhite complained to Singh’s supervisor, who verbally reprimanded Singh (though, Sing was promoted shortly after), as well as to the Anti-Defamation League, which led to an investigation by the City Office of Inspector General.[7] Singh subsequently demoted Satterwhite two pay grades after he repeatedly reprimanded Satterwhite for reasons Satterwhite believed to be an adverse response to his reporting of Singh.[8] Thus, it is evident that all three prongs of a prima facie case have been satisfied, right?

Wrong. While Satterwhite may have opposed Singh’s conduct and suffered an adverse employment action, the Fifth Circuit concluded that Singh’s “Heil Hitler” was not a protected activity under Title VII.[9] The Court explained, “Satterwhite acknowledges that Singh’s comment was a single and isolated incident. He could not have reasonably believed that this incident was actionable under Title VII, and therefore, it ‘cannot give rise to protected activity.’”[10] While the Court’s conclusion that one “Heil Hitler” is not enough may surprise most people, the more shocking conclusion is that “no reasonable employee” could have believed that the incident created a hostile work environment.[11] Given that the Fifth Circuit may have made quite a stretch here, the odds of another Circuit’s disagreeing with this conclusion are not unlikely.[12] Accordingly, employers “should proceed with caution in relying on the Satterwhite decision.”[13]

[1] See Andrew D. Peters, A Single “Heil Hitler” Not Hostile Enough, The National Law Review (Mar. 17, 2015), http://www.natlawreview.com/article/single-heil-hitler-not-hostile-enough; Eric B. Meyer, Apparently, in Texas, Your Managers Are Allowed One Free “Heil Hitler,” The Employer Handbook (Mar. 5, 2015), http://www.theemployerhandbook.com/2015/03/apparently-texas-managers-allowed-one-free-heil-hitler.html; Michael P. Maslanka, Fifth Circuit Throws a Wrench in Retaliation Claim Format, Texas Lawyer (Mar. 13, 2015, 4:00 PM), http://www.texaslawyer.com/home/id=1202720578809/Fifth-Circuit-Throws-a-Wrench-in-Retaliation-Claim-Format?mcode=1202616363777&curindex=1&slreturn=20150222132641.

[2] Satterwhite v. City of Houston, No. 14-20240, 2015 U.S. App. LEXIS 3370, at *2-3 (5th Cir. Mar. 3, 2015).

[3] Id. at *5.

[4] Id. at *7-8.

[5] See 42 U.S.C. § 2000e-3(a) (2014) (“It shall be an unlawful employment practice for an employer to discriminate […] because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”).

[6] Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (“To present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.”).

[7] Satterwhite, supra note 2 at *2-3.

[8] Id. at *3-4.

[9] Id. at *8-9.

[10] Id. at *9.

[11] Peters, supra note 1.

[12] Peters, supra note 1

[13] Peters, supra note 1; see also Meyer, supra note 1.

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