Are Employee Organizations Protected By Title VII’s Anti-Retaliation Provision?
No – the D.C. Circuit Court of Appeals recently held that Title VII’s anti-retaliation provisions do not apply to employee organizations.
In Cook & Shaw Foundation v. Billington, a non-profit organization composed of current and former employees of the Library of Congress alleged that the Library retaliated against it by refusing to recognize the organization for purposes of providing meeting spaces and other benefits. The organization claimed that the Library’s refusal to recognize it was in retaliation for the organization providing assistance to employees to pursue claims of racial discrimination against the Library. No. 12-5193 (D.C. Cir., Dec. 13, 2013).
The D.C. Circuit Court of Appeals held that the complaint failed to state a claim for retaliation under Title VII. Analyzing the statutory text of Title VII, the court explained that Title VII only prohibits retaliation by an employer if the retaliation occurs because of statutorily protected activity by “employees or applicants for employment.” The court then held that the terms “employees or applicants for employment” do not include employee organizations, such as the Cook & Shaw Foundation. Because the complaint only alleged that the organization engaged in protected activity, but did not allege that any particular employees or applicants engaged in protected activities, it failed to state a claim under Title VII’s anti-retaliation provision.
Takeaway: Title VII’s anti-retaliation provision only applies when an employee or applicant for employment engages in protected activity. The activity of an organization, on the other hand, is not protected by the statute.