Refusing to Discuss Settlement Can be Protected Activity under Title VII

In Newton v. LVMH, the Court of Appeals in the Second Circuit held that, under certain circumstances, an employee’s refusal to discuss settling a pending sexual harassment and discrimination lawsuit may constitute protected activity under Title VII.

Title VII prohibits employers from retaliating against employees who oppose unlawful discrimination or participate in proceedings involving discrimination claims. Protected activity can include filing a charge of discrimination, participating in an investigation, or bringing a discrimination lawsuit.

In Newton, the Second Circuit addressed whether protected activity could also include refusing to discuss settlement of an existing discrimination lawsuit. The plaintiff, an attorney, had sued LVMH alleging sexual harassment, sex discrimination, and retaliation under federal, New York State, and New York City law. While she was pursuing her claims, her supervisor asked whether she would consider settling the lawsuit. She declined to meet with him to discuss settlement.

The plaintiff alleged that after she refused to discuss settlement, LVMH took a series of retaliatory actions against her. She alleged that the company restricted her ability to speak at professional conferences, excluded her from important communications, ignored her during meetings, excluded her from an employee’s farewell dinner, and ultimately terminated her. The Second Circuit held that her refusal to discuss settlement could constitute protected activity under Title VII’s opposition clause.

The Court reasoned that an employee who files a discrimination claim is asserting that the employer has wronged her. In some circumstances, refusing to settle that claim can communicate that the employee continues to oppose the alleged unlawful conduct and wants acknowledgment or legal redress for it.

The Court emphasized that not every refusal to settle a discrimination or sexual harassment lawsuit will qualify as protected activity. Whether conduct is protected depends on the circumstances and what the employer reasonably could have understood from the employee’s actions. In Newton, the plaintiff had been actively pursuing her discrimination claims and had publicly advocated for legislation concerning sexual harassment lawsuits. In that context, the Court concluded that her refusal to meet with her supervisor could reasonably have been understood as continuing to oppose the alleged discriminatory conduct.