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Retaliation #30
by Ross Runkel at LawMemo
Several federal statutes (such as Title VII, the Age Discrimination in Employment Act (ADEA), and Americans with Disabilities Act (ADA)) prohibit an employer from retaliating against an employee (1) because of her "participation" in an official proceeding or (2) because she "opposed" any practice that the statute makes unlawful. Other federal and state statutes have similar provisions.
Protected employee activity. There are two kinds of employee activity that are protected: (1) participation and (2) opposition.
Participation. "Participation" includes filing a charge with EEOC or with a relevant state agency, testifying, providing documents, giving a deposition, or otherwise being actually involved in an EEOC or court case. Any testimony that an employee gives is absolutely protected, even if it turns out to be false.
Opposition. "Opposition" includes making internal complaints, writing to a newspaper, complaining to a labor union, or even organizing a boycott. "Opposition" does not have absolute protection. The opposition must be "reasonable," so some activity will not be protected. Examples: interfering with the work of co-workers, blocking access to buildings, saying bad things about the employer's products or services, taking or copying the employer's confidential information or documents. One important thing that is not protected is making false statements.
Opposing "unlawful" practices. The statute says the employee must be opposing a practice that is "unlawful." Sometimes the employee believes the practice is unlawful, but it really is not. (Example: sexual harassment might not be severe or pervasive enough to be illegal.) Even so, the opposition will be protected if (1) the employee actually believes in good faith that the practice is unlawful and (2) a reasonable person would believe the practice is unlawful.
There are many examples of cases in which an employee complained about alleged discrimination that turned out not to exist, but then the employer retaliated against the employee for making the complaint. The employee can win on a retaliation claim even though she loses on the underlying discrimination claim.
"Because of." The employee must prove that the employer discriminated against the employee because of her opposition. This requires that the employee prove cause-and-effect. That is, the employee must prove that it was the opposition that caused the employer's reaction.
What is "retaliation"? Many types of "adverse actions" by an employer can be retaliation. According to a June 2006 US Supreme Court decision, it is not limited to on-the-job events such as demotions. It can include off-work events such as filing false criminal charges.
Most important is that it includes employer actions that "would have been materially adverse to a reasonable employee or job applicant." This excludes minor annoyances, but can include changes in job responsibilities that do not involve a loss of pay. The court will look at the employer's actions from "the perspective of a reasonable person in the plaintiff's position."
Coming next: Remedies for Discrimination #31: Employment Law 101
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
