On Monday, September 21st, the Second Circuit Court of Appeals held that a terminated in-house attorney plausibly alleged that she engaged in a protected activity when she refused to meet with her supervisor to discuss settling her pending harassment lawsuit.

In Newton v. LVMH Moet Hennessy Louis Vuitton Inc., Newton filed a lawsuit in 2019 alleging that she was sexually harassed and assaulted at work. In 2022, LVMH terminated Newton’s employment, and Newton filed a federal retaliation claim, alleging two actions after July 2022 that she argued were protected activity:

1. her refusal to meet with her supervisor to discuss settlement of the 2019 lawsuit, and
2. speaking out in a public forum and on social media to assert her right to be free from sex discrimination in the workplace.

As to the first category, the district court concluded that refusing to meet with her supervisor did not constitute a protected activity, and with respect to the second, the district court concluded that Newton did not plausibly allege that defendants were aware of Newton’s statements. The district court then dismissed the retaliation claim.

The Second Circuit reversed, holding that Newton’s refusal to meet with her supervisor was in fact a protected activity. The court held that initiating a lawsuit is certainly protected activity, and therefore refusing to end that lawsuit can, “depending on the context,” constitute a continuation of that same assertion. The court noted that the relevant question is “whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices.”

As this case highlights, Employers should take note that “protected activity” for purposes of a retaliation claim is broader than just filing a lawsuit or making a specific complaint about potential unlawful harassment. Employers should assess all possible risk factors when making employment termination decisions.

On Monday, September 21st, the Second Circuit Court of Appeals held that a terminated in-house attorney plausibly alleged that she engaged in a protected activity when she refused to meet with her supervisor to discuss settling her pending harassment lawsuit.

In Newton v. LVMH Moet Hennessy Louis Vuitton Inc., Newton filed a lawsuit in 2019 alleging that she was sexually harassed and assaulted at work. In 2022, LVMH terminated Newton’s employment, and Newton filed a federal retaliation claim, alleging two actions after July 2022 that she argued were protected activity:

1. her refusal to meet with her supervisor to discuss settlement of the 2019 lawsuit, and
2. speaking out in a public forum and on social media to assert her right to be free from sex discrimination in the workplace.

As to the first category, the district court concluded that refusing to meet with her supervisor did not constitute a protected activity, and with respect to the second, the district court concluded that Newton did not plausibly allege that defendants were aware of Newton’s statements. The district court then dismissed the retaliation claim.

The Second Circuit reversed, holding that Newton’s refusal to meet with her supervisor was in fact a protected activity. The court held that initiating a lawsuit is certainly protected activity, and therefore refusing to end that lawsuit can, “depending on the context,” constitute a continuation of that same assertion. The court noted that the relevant question is “whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices.”

As this case highlights, Employers should take note that “protected activity” for purposes of a retaliation claim is broader than just filing a lawsuit or making a specific complaint about potential unlawful harassment. Employers should assess all possible risk factors when making employment termination decisions.