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There is no hard and fast rule as to whether the conduct in a given case is protected. Instead, a court evaluates the facts of each case in light of the statutory language and legislative intent. Protected opposition conduct includes more than formal filing of charges before the Equal Employment Opportunity Commission (EEOC). Indeed, Title VII of the Civil Rights Act of 1964's, 42 U.S.C.S. § 2000e et seq., opposition clause is triggered by formal EEOC proceedings as well as informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support for co-workers who have filed formal charges. When deciding whether a plaintiff has engaged in opposition conduct, a court looks to the message being conveyed rather than the means of conveyance.
Michele Curay-Cramer, a teacher at the Ursuline Academy, a private, Catholic school, was fired after she signed her name to a pro-choice advertisement in the local newspaper. Curay-Cramer asserted both that signing the advertisement was conduct protected by 42 U.S.C. § 2000e-3(a) and that she was fired for conduct less egregious under Catholic doctrine than conduct of male employees who were treated less harshly. The District Court granted defendants' motions to dismiss under FED. R. CIV. P. 12(b)(6).
Did Curay-Cramer engage in protected activity when she signed the pro-choice advertisement?
The court agreed that basic pro-choice advocacy did not constitute opposition to an illegal employment practice. The court found Title VII's anti-retaliation provisions only protected employees who participated in Title VII's statutory processes or who otherwise opposed employment practices made illegal by Title VII. The court concluded that Curay-Cramer did not engage in protected activity when she signed a pro-choice advertisement that did not mention employment, employers, pregnancy discrimination, or even gender discrimination. The court would will not apply Title VII to Curay-Cramer’s claim because Congress had not demonstrated a clear expression of an affirmative intention that the court do so in situations where it was impossible to avoid inquiry into a religious employer's religious mission or the plausibility of its religious justification for an employment decision.