We have written a lot about retaliation -- for good reason. It is the most frequently filed employment discrimination charge (see our blog of 9/20/11), and, more importantly, it is far easier to prove than an underlying claim of discrimination; even if the underlying claim of discrimination has no merit, there can still be a meritorious claim of retaliation.
The three elements of retaliation are: (1) that plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” by the employer, and (3) some causal connection between the two.
We have written before about “adverse employment actions,” and also about the concept of “causal connection” (see our blogs of 3/29/11 and 11/7/11). A new court decision gives us the opportunity to examine the first element: what constitutes engaging in a “statutorily protected activity.”
A federal appeals court recently was faced with a plaintiff who claimed that she was fired after she complained that because she was African American she was given less favorable work assignments than white employees. The court repeated the first element that we mentioned above, that “A plaintiff engages in statutorily protected activity when she opposes an employment practice that she has a good faith, reasonable basis to believe is unlawful,” and then explained that a plaintiff must show a “subjective” good faith belief that the employer had engaged in unlawful employment practices, and also that her belief was “objectively reasonable in light of the facts and record presented.”
In this case, based upon plaintiff’s testimony, the court held that plaintiff had not established that she “reasonably believed” that she was the victim of discrimination, or, put another way, that her belief (even if it was held in subjective, good faith) was “objectively reasonable.” Plaintiff could not identify any favorable work that been assigned to white employees, and even acknowledged that white employees might also have been given less favorable work assignments. Without any relevant knowledge, the court reasoned that plaintiff could not have reasonably believed that she was the victim of discrimination.