Retaliation claims originate from employees engaging in a protected activity, such as reporting a violation of a federal law, and the employer retaliating by taking an adverse employment action against the employee. What is a protected activity is not always clear. For instance, an employee may be able to maintain a retaliation claim for reporting legal conduct, so long as the employee believed it was illegal. Other elements of a retaliation claim require that the employer initiate the adverse employment action because the employee engaged in protected activity. This article summarizes how an employer can identify a potentially protected activity and ensure that it complies with Title VII after an employee engages in a protected activity.

  1. "Protected activities" under Title VII of the Civil Rights Act of 1964

What is a "protected activity?" An employee can demonstrate that they were engaged in protected activity by showing that either (1) he/she participated in an activity protected by an employment statute; or (2) opposed an employment practice prohibited by an employment statute. Examples would include filing an EEOC charge, testifying or participating in an investigation conducted pursuant to a statute, etc.

On January 26, 2009, the United States Supreme Court expanded what constitutes "protected activity" when it found that employees who participate in an employer's internal investigation are engaging in a "protected activity." In Crawford v. Metropolitan Government of Nashville and Davidson County, TN, the Supreme Court held that an employee who answers questions during an employer's internal investigation may be "opposing" an employment practice prohibited by an employment statute. In this case, Metro, the employer, began an internal investigation of one of its employees, Dr. Hughes. During the investigation, Metro asked Ms. Crawford, the plaintiff, about her interactions with Hughes. Crawford stated that Hughes sexually harassed her. Soon afterwards, Crawford was fired, allegedly for embezzlement.

The issue in this case was whether Metro's actions were subject to Title VII since Crawford had not initiated the complaint and the investigation was not pursuant to Title VII but rather was an in-house investigation. The Sixth Circuit held that Crawford had not opposed any practices because she had merely participated in an ongoing investigation. Critical to the Sixth Circuit's analysis was the fact that Crawford had not initiated the complaint against Hughes.

The United States Supreme Court reversed the Sixth Circuit’s decision. The Supreme Court gave a broader definition to the term "opposition.” It stated that an employee acts in opposition to an improper activity not only by reporting it, but also by responding to questions. When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.

The law also carves out an exception for employer conduct that is not illegal, but the employee sincerely believes that it is. For example, assume that an employee believes it is illegal for an employer to put aluminum cans in the regular trash bin, and the employee complains to the Environmental Protection Agency. The employer chooses to fire him. While the employer's placing of aluminum cans in the regular trash might not have been illegal, the employee might still maintain a retaliation claim based on his sincerely held belief that the employer was engaging in illegal activity. This is called the "good faith, reasonable belief" exception.

Under this exception, the protected activity must be related to the terms and conditions of employment. Thus, if an employee were to complain to the Department of Labor that she was not paid overtime (triggering a Fair Labor Standards Act claim), or not getting a reasonable accommodation under the Americans with Disabilities Act, her activities would be protected. However, if the employee were to complain that her employer serves cupcakes on Friday, she would not be engaging in a protected activity.

  1. Causal Connection Existed Between the Protected Activity and the Adverse Employment Action

To succeed on a retaliation claim under the Title VII of the Civil Rights Act of 1964, the employee must show that “but for” his engagement in the protected activity, the employee would not have suffered an adverse employment action. There are several questions here:

  1. Did the employer know that the employee was engaging in protected activity?

An employee can act as the employer’s agent in these situations. If an employee has the ability to hire and fire on behalf of a company, or to make certain kinds of decisions for that company, under basic agency principles, that person could bind the company by his or her actions. This carries over to discrimination and retaliation claims. Even if the company is unaware of a supervisor’s actions, that supervisor's unlawful conduct can be imputed to the company.

  1. Evidence To Establish Temporal Proximity

A causal connection can sometimes be satisfied through evidence of temporal proximity. If the employee’s engagement in the protected activity and the adverse employment action are close enough in time, the court may infer that there is a causal connection between the two.