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Employment Law: Retaliation
There are three essential elements of a
retaliation claim:
PROTECTED ACTIVITY:
OPPOSITION
1. Definition.
The anti-retaliation provisions make it unlawful
to discriminate against an individual because
s/he has opposed any practice made unlawful
under the employment discrimination statutes.
This protection applies if an individual
explicitly or implicitly communicates to his or
her employer or other covered entity a belief
that its activity constitutes a form of
employment discrimination that is covered by any
of the statutes enforced by the EEOC. While
Title VII and the ADEA prohibit retaliation
based on opposition to a practice made unlawful
by those statutes, the ADA prohibits retaliation
based on opposition to "any act or practice made
unlawful by this chapter." The refer-enced
chapter prohibits not only disability-based
employment discrimination, but also disability
discrimination in state and local government
services, public accommodations, com-mer-cial
facilities, and telecommunications. Thus, the
ADA prohibits retaliation for opposing not just
allegedly discriminatory employment practices
but also practices made unlawful by the other
titles of the statute.
2.
Examples of Opposition
Threatening to file a charge or other formal complaint alleging
discrimination
Threatening
to file a complaint with the Commission, a state fair employment
practices agency, union, court, or any other entity that
receives complaints relating to discrimination is a form of
opposition.
Example -
Aggrieved Employee tells her manager that if he fails to raise
her salary to that of a male coworker who performs the same job,
she will file a lawsuit under either the federal Equal Pay Act
or under her state's parallel law. This statement constitutes
"opposition."
* Complaining to anyone about alleged discrimination against
oneself or others. A complaint or protest about alleged
employment discrimination to a manager, union official,
co-worker, company EEO official, attorney, newspaper reporter,
Congressperson, or anyone else constitutes opposition.
Opposition may be nonverbal, such as picketing or engaging in a
production slow-down. Furthermore, a complaint on behalf of
another, or by an employee's representative, rather than by the
employee herself, constitutes protected opposition by both the
person who makes the complaint and the person on behalf of whom
the complaint is made. A complaint about an employment practice
constitutes protected opposition only if the individual
explicitly or implicitly communicates a belief that the practice
constitutes unlawful employment discrimination. Because
individuals often may not know the specific requirements of the
anti-discrimination laws enforced by the EEOC, they may make
broad or ambiguous complaints of unfair treatment. Such a
protest is protected opposition if the complaint would
reasonably have been interpreted as opposition to employment
discrimination.
Example 1 -
Aggrieved Employee calls the President of Employer's parent
company to protest religious discrimination by Employer.
Aggrieved Employee's protest constitutes "opposition."
Example 2 -
Aggrieved Employee complains to co-workers about harassment of a
disabled employee by a supervisor. This complaint constitutes
"opposition."
Example 3 -
Aggrieved Employee complains to her foreman about graffiti in
her workplace that is derogatory toward women. Although she does
not specify that she believes the graffiti creates a hostile
work environment based on sex, her complaint reasonably would
have been interpreted by the foreman as opposition to sex
discrimination, due to the sex-based content of the graffiti.
Her complaint therefore constitutes "opposition."
Example 4 -
Aggrieved Employee (African-American) requests a wage increase
from Employer, arguing that he deserves to get paid a higher
salary. He does not state or suggest a belief that he is being
subjected to wage discrimination based on race. There also is no
basis to conclude that Employer would reasonably have
interpreted his complaint as opposition to race discrimination
because the challenged unfairness could have been based on any
of several reasons. Aggrieved Employee's protest therefore does
not constitute protected "opposition."
* Refusing
to obey an order because of a reasonable belief that it is
discriminatory
Refusal to
obey an order constitutes protected opposition if the individual
reasonably believes that the order requires him or her to carry
out unlawful employment discrimination.
Example -
Aggrieved Employee works for an employment agency. His manager
instructs him not to refer any African-Americans to a particular
client, based on the client's request. Aggrieved Employee
refuses to obey the order and refers an African-American
applicant to that client. Aggrieved Employee's action
constitutes "opposition."
Refusal to
obey an order also constitutes protected opposition if the
individual reasonably believes that the order makes
discrimination a term or condition of employment. For example,
in one case a court recognized that a correction officer's
refusal to cooperate with the defendant's practice of allowing
white but not black inmates to shower after work shifts
constituted protected opposition. Even if the inmates were not
"employees," the plaintiff could show that his enforcement of
the policy made race discrimination a term or condition of his
employment. Thus, his refusal to obey the order constituted
opposition to an unlawful employment practice.
Requesting
reasonable accommodation or religious accommodation
A request for
reasonable accommodation of a disability constitutes protected
activity under Section 503 of the ADA. Although a person making
such a request might not literally "oppose" discrimination or
"participate" in the administrative or judicial complaint
process, s/he is protected against retaliation for making the
request. As one court stated, "It would seem anomalous . . . to
think Congress intended no retaliation protection for employees
who request a reasonable accommodation unless they also file a
formal charge. This would leave employees unprotected if an
employer granted the accommodation and shortly thereafter
terminated the employee in retaliation."
By the same
rationale, persons requesting religious accommodation under
Title VII are protected against retaliation for making such
requests.
3.
Standards Governing Application of the Opposition Clause
Although the
opposition clause in each of the EEO statutes is broad, it does
not protect every protest against job discrimination. The
following principles apply:
a. Manner of
Opposition Must Be Reasonable
The manner in
which an individual protests perceived employment discrimination
must be reasonable in order for the anti- retaliation provisions
to apply. In applying a "reasonable-ness" standard, courts and
the Commission balance the right of individuals to oppose
employ-ment discrimination and the public's interest in
enforcement of the EEO laws against an employer's need for a
stable and productive work environment. Public criticism of
alleged discrimination may be a reasonable form of opposition.
Courts have protected an employee's right to inform an
employer's customers about the employer's alleged
discrimination, as well as the right to engage in peaceful
picketing to oppose allegedly discriminatory employment
practices. On the other hand, courts have found that the
following activities were not reasonable and thus not protected:
searching and photocopying confidential documents relating to
alleged ADEA discrimination and showing them to co-workers;
making an overwhelming number of complaints based on unsupported
allegations and bypassing the chain of command in bringing the
complaints; and, badgering a subordinate employee to give a
witness statement in support of an EEOC charge and attempting to
coerce her to change her statement. Similarly, unlawful
activities, such as acts or threats of violence to life or
property, are not protected. If an employee's protests against
allegedly discriminatory employment practices interfere with job
performance to the extent that they render him or her
ineffective in the job, the retaliation provisions do not
immunize the worker from appropriate discipline or discharge.
Opposition to perceived discrimination does not serve as license
for the employee to neglect job duties.
b. Opposition
Need Only Be Based on Reasonable and Good Faith Belief
A person is
protected against retaliation for opposing perceived
discrimination if s/he had a reasonable and good faith belief
that the opposed practices were unlawful. Thus, it is well
settled that a violation of the retaliation provision can be
found whether or not the challenged practice ultimately is found
to be unlawful. As one court has stated, requiring a finding of
actual illegality would "undermine Title VII's central purpose,
the elimination of employment discrimination by informal means;
destroy one of the chief means of achieving that purpose, the
frank and non-disruptive exchange of ideas between employers and
employees; and serve no redeeming statutory or policy purposes
of its own."
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