Labor & Employment
Fall 2018

“Good Faith vs. Retaliation” in Sexual Discrimination Retaliation Cases

In Villa v. Cavamezze Grill, LLC, 858 F.3d 896 (2017), the U.S. Court of Appeals for the Fourth Circuit considered whether the an employer’s good faith belief in an employee’s misconduct could serve as a defense to a retaliation claim. In this case, the plaintiff told her employer that employees were offered money in exchange for sex. The employer investigated the specific allegations and came to a good faith determination that the plaintiff was lying, and she was terminated. The plaintiff subsequently filed a complaint alleging retaliation under Title VII.

Title VII’s anti-retaliation provision makes it illegal for an employer to retaliate against employees for opposing or participating in a complaint process against any of its employees. The first part, known as the “opposition clause,” prohibits discrimination when the employee has opposed any employment practice made unlawful by the statute. The second part, known as the “participation clause,” prohibits discrimination when an employee has made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing under Title VII.

The Court noted that Title VII retaliation claims  require proof that the desire to retaliate was the “but-for cause of the challenged employment action,” that is, that the employee was terminated because he or she engaged in protected activity. The Court rationalized its decision, holding that the facts the employer actually perceived matter, and held that if an employer, due to a genuine factual error, never realized that its employee engaged in protected conduct, then the employer did not act out of a desire to retaliate against an employee. The Court noted that evidence of an obviously improper investigation could show that the claimed employee conduct was actually a pretext for terminating an employee for protected activity, but the plaintiff had already conceded that this was not the case. Based on the facts in this case, the Court found that the plaintiff failed to show that her employer was motivated by a desire to retaliate against her for engaging in conduct that was protected.

This case demonstrates the importance of having appropriate policies in place to fully investigate allegations of sexual harassment and discrimination. Employers should thoroughly investigate any allegations of harassment and document both the basis for any conclusions and the basis for any actions taken subsequent to the investigation. An employer needs to be able to justify its actions in terminating an employee, and ensure that the reason for termination is not actually a pretext for retaliation against the employee.