EEOC Issues Updated Retaliation Guidance, Part 2: What

EEOC Issues Updated Retaliation Guidance, Part 2: What Constitutes a Protected Activity?

We first discussed the newly released retaliation Enforcement Guidance issued by the Equal Employment Opportunity Commission (EEOC) in our blog post titled “EEOC Issues Updated Guidance on Workplace Retaliation.” However, due to the comprehensive nature of this Enforcement Guidance, we were only able to discuss the subject of promising practices, which was one of many topics it addressed.

This blog post continues our discussion of the EEOC’s Enforcement Guidance and focuses on the EEOC’s broadening definition of what constitutes a protected activity.

We encourage those of you who are unfamiliar with the legal theory of retaliation to review some of the other retaliation references on our website, such as the above-linked blog post and the retaliation practice areas section.

Protected Activity Basics

One of the most important components for a claim of retaliation is whether an employee engaged in a protected activity. A protected activity is something an employee does that is protected by law. Within the retaliation context, there are two types of protected activities: participation in a discrimination investigation and opposition to discrimination.

Participation

Participation occurs when an employee participates, in any manner, in an investigation, proceeding, or hearing under any one of the many federal discrimination laws. Examples of employee participation include:

testifying as a witness in an administrative proceeding,
participating in an employer’s internal investigation process,
filing a complaint with the EEOC or employer, and
suing an employer for discrimination.

Participation remains a protected activity, even if the employee knowingly lies during the participation event. We’ll explain this in more detail in a minute.

Opposition

Opposition is the second type of protected activity and refers to any action taken by an employee to oppose actual or perceived employment discrimination. The EEOC’s interpretation of what constitutes opposition is very broad and can include the following types of activities:

informing or complaining to an employer that something the employer is doing is discriminatory,
refusing to obey an employer’s command that the employee believes is discriminatory,
answering an employer’s questions about potential discrimination, or
accompanying a victim of discrimination during an employer’s internal complaint process.

Since the definition of what constitutes opposition is expansive, there are no formal procedures or “magic” words to turn something into protected opposition. For example, the use of certain terms, such as “harassment” or “discrimination,” is not required.

While fairly accommodating, there are limits to what constitutes opposition in a retaliation context.

Good Faith Belief and Reasonableness of the Protected Activity

When it comes to deciding what constitutes a protected activity within the retaliation context, one of the most hotly debated issues is the reasonableness and good faith belief (or lack thereof) in the employee’s protected activity. However, the standards are not the same for participation and opposition types of protected activities.

Participation

Participatory conduct can be controversial because it does not require the employee to have a reasonable belief that illegal discrimination has taken place. Put another way, an employee who files a complaint about discrimination knowing full well that no discrimination has taken place is immune from retaliation from the employer.

You might be thinking that this isn’t fair, and you’d be correct. But let’s try to explain why this seemingly unfair rule is in place.

The primary reason that employees enjoy immunity for participation is because of the overriding principle that individuals who participate in a discrimination investigation or proceeding should be able to speak freely.

The EEOC and many courts have taken the position that it’s worth allowing a few bad faith discrimination complainers to be protected from retaliation to protect honest employees acting in good faith who might censor themselves because of the fear that they might get a single fact wrong and suffer retaliation as a consequence.

Additionally, if participation weren’t protected from retaliation, what would the legal standard be concerning what constitutes reasonable and protected participation?

The courts would have enough trouble fleshing this out, so imagine how employees with no legal training would feel. They would have to weigh whether to file a discrimination complaint against the possibility that they could be punished because the employer or some other factfinder concludes that they somehow acted unreasonably.

It’s the EEOC’s position that this type of scenario would be detrimental to rooting out discrimination in the workplace and therefore should be avoided, even at the cost of allowing individuals making false claims of discrimination to receive protection from retaliation.

For additional reading about retaliation protections when the employer believes the complaining employee has acted in bad faith, take a look at our earlier blog post “Does Getting Fired for Lying Count as Retaliation?”

Opposition

Unlike participation, opposition has a reasonableness and good faith requirement. Employees who decide to oppose employer discrimination must conduct their opposition in a reasonable manner. This means that employees cannot make an unreasonable number of frivolous complaints, fail to complete job duties to engage in opposition, pressure a co-worker to act a certain way in response to possible employer discrimination, or act in a way that risks harm to others or property.

In addition to the manner in which employees state their opposition to discrimination, their underlying belief must be reasonable and in good faith. For example, let’s say an older employee is passed over for promotion by a less qualified, younger employee. The older employee believes that he is the victim of age discrimination and complains to his boss. This is reasonable and good faith opposition.

Let’s slightly modify this hypothetical so that the older employee is missing a requirement for the promotion that the younger employee had. Despite knowing that this shortcoming was the reason he didn’t get the promotion, he still complains to his boss. This is not reasonable and good faith opposition.

Summing It Up

Protection from retaliation only exists if the employee engaged in a protected activity.
There are two types of protected activities: participation and opposition.
Participation is the participation of an employee in any discrimination investigation, proceeding, or complaint process.
An employee is deemed to have “participated” in a protected activity even if the employee acts in bad faith, unreasonably, or maliciously.
Participation is a protected activity despite bad faith actions because of the overriding policy of encouraging free and unrestrained testimony and cooperation by employees during a discrimination proceeding or investigation.
Opposition is any activity an employee does in response to an employer acting in a discriminatory manner.
Unlike participation, opposition requires employees to have a reasonable and good faith belief that what they are opposing is actually discrimination.

The Title VII starting point

Title VII’s anti-retaliation provision makes it unlawful for a covered employer to discriminate against an employee or applicant because that person opposed a practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing. Title VII addresses discrimination based on race, color, religion, sex, and national origin. Other laws can have related but distinct retaliation rules.

Participation in a Title VII process

The participation clause concerns activity connected to a Title VII charge, investigation, proceeding, or hearing. Examples can include making a charge or providing testimony in a Title VII matter. Whether activity falls within the participation clause depends on the facts and the connection to the statutory process.

A workplace complaint is not automatically the same as participating in an external agency process. Nor does simply being present during an internal inquiry automatically resolve which clause, if any, applies.

Opposition to perceived discrimination

The opposition clause can cover communicating resistance to a practice the person reasonably believes is unlawful under Title VII. Opposition may take different forms, including an internal complaint or a response to a question in an employer’s inquiry. The way a concern is expressed and the surrounding facts can matter.

In Crawford v. Metropolitan Government of Nashville, the Supreme Court held that an employee who described alleged sexual harassment when asked during an internal investigation had opposed unlawful conduct for purposes of the case before it. The decision does not mean that every internal investigation response is participation activity or that every statement in an investigation resolves a retaliation question.

Retaliation is a separate, fact-specific question

Even where activity is protected, the analysis does not stop there. A later employment action, the timing, the employer’s explanation, comparators, intervening events, and other facts may be relevant. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court addressed Title VII retaliation causation in a particular statutory framework. It did not create a simple timing-based rule for all workplace situations.

Other laws have different rules

Title VII is not the only law with an anti-retaliation provision. The Americans with Disabilities Act, for example, has separate retaliation and interference provisions. Wage-and-hour, leave, public-sector, whistleblower, union, contract, state, and local laws may use different terms and processes.

This article is general information, not legal advice. Employment law changes, and your situation may differ. For advice about your own case, talk to an attorney.

EEOC Issues Updated Retaliation Guidance, Part 2: What Constitutes a Protected Activity?