August 28, 2025
How Active Must Protected Activity Be?
In this case, a manager called an Arab American employee a… [sorry, it’s so rude and nasty I can’t bring myself to type the profane and vulgar words here]. A coworker, who was also Arab American and overheard the slur, asked the manager, “Don’t you know I’m Lebanese?” to which the manager answered, “I thought you were Mexican.” Sometime thereafter, the employee was fired by the general manager for unsatisfactory work performance. The employee then sued for unlawful retaliation under Title VII of the Civil Rights Act of 1964.
One of the questions posed was whether the employee had engaged in lawfully protected activity when he defended his coworker and made the comment to the manager. The judge explained that “despite the utter disrespect that this dehumanizing language conveys it does not violate Title VII…[a] complaint concerning a single ethnic slur did not convey his belief that he was subjected to a hostile work environment.” BUT WAIT! There’s more.
Please don’t rely on this case and write off an employee’s report about an isolated, offensive remarks. Why? State laws may be stricter. Maryland is an example. Maryland’s law was modified a few years ago and now expressly reads that unlawful workplace harassment “need not be severe or pervasive.” If a single ethnic slur could constitute unlawful harassment, it may also establish protected activity when an employee expresses a concern about it.
It’s not just about the law and limiting your liability. It’s about employee relations. Why would you tolerate an isolated racial, ethnic, sexual or any other slur? Life is too short to work in a degrading, unkind, uncivil, disrespectful workplace. Make sure yours is not one. Ask applicants to give an example of how they have demonstrated workplace civility in their current job. Talk about it in your new employee orientation and periodic training. And hold all employees accountable, including managers and leadership.
Final note. This case also addresses the cat’s paw theory of liability. The employee lost that claim, as well. You can read more about this theory here and here. They also serve as great examples to share in your management training to illustrate why HR asks for documentation!
