The first section
discusses the types of “participation” and “opposition” that could constitute
protected activity. The obvious areas
including filing a Charge, threatening to file a Charge, pursuing an internal
EEO complaint, participating in an internal or EEOC investigation, rejecting
sexual advances, refusing to discriminate against subordinates, and requesting
a reasonable accommodation for a disability or religious practice. However, the EEOC also included in this reporting
a sexual assault to the police, reporting alleged discrimination to the news
media or the employer’s customers, picketing, and passively refusing to comply
with an unlawful direction to discriminate.
Even though an employee engages in protected activity, however, does not
mean that he or she is immune from disciplinary action for also engaging in
improper conduct or poor job performance.
Accordingly, employees cannot attempt to prevent disciplinary action
simply by engaging in protected activity.
Even if the employee
is incorrect about whether discrimination or harassment occurred, the employee
need only have a reasonable good faith belief that the underlying employment
action is illegal to be covered by the opposition
clause. For instance, an employee may
protest workplace conduct before it becomes serious and pervasive enough to
constitute harassment. (However, there is no protection under the opposition
clause for “complaints about trivial matters that no reasonable person could
believe could become harassment or other discrimination.”). The EEOC will consider the employee’s
opposition conduct to be protected unless his or her complaint is patently
specious. As an example, the EEOC
described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside
his protected class. Similarly, an
employee who complains about not receiving a promotion even though she
admittedly did not possess the required degree or license would not have a
reasonable belief about possible discrimination.
That being said, the
EEOC does not require a reasonable belief about the legality of the
underlying activity when the employee is covered by the participation clause
(i.e., filing a charge or participating in an EEOC investigation). This is true even if the underlying alleged
discriminatory action was legal or the Charge was untimely. It even notes that the employee’s allegations
may be malicious, defamatory and wrong, but still be protected. Even though it recognizes that many federal
courts – including the Sixth Circuit which has jurisdiction over Ohio and the
Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints
to be covered by the participation clause unless the employee also filed a
Charge with the EEOC, the EEOC explicitly states that it views internal EEO
complaints to be protected “participation” which does not require the employee
to have a reasonable belief about the validity of the allegations or to even
tell the truth. (Nonetheless, the EEOC
continues to discuss situations involving internal EEO complaints under the
opposition standard throughout the Guidance). Accordingly, this would prevent an employer
from taking disciplinary action against an employee who provided incorrect (and
possibly false and fabricated information) during an internal EEO or harassment
investigation:
Thus, the application
of the participation clause cannot depend on the substance of testimony
because, “[i]f a witness in [an EEO] proceeding were secure from retaliation
only when her testimony met some slippery reasonableness standard, she would
surely be less than forth-coming.” These protections ensure that employers
cannot intimidate their employees into forgoing the complaint process and that
those investigating can obtain witnesses’ unchilled testimony.
Encompasses
Internal Complaints. The
Commission also views “participation” as encompassing internal EEO complaints
to company management, human resources, or otherwise made within an employer’s
internal complaint process before a discrimination charge is actually filed
with the EEOC or a state or local Fair Employment Practices Agency. The text of Title VII prohibits retaliation
against those who “participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”
There were a few
areas of protected activity that the EEOC discussed more extensively than
others. First, it emphasized that the
actions of HR employees, managers and supervisors would be constitute protected
activity even if their job duties involved remedying harassment and
discrimination and granting reasonable accommodations, etc. The EEOC also suggested that an employee’s
violation of pay confidentiality policies could constitute protected conduct and
notes that the NLRA and certain Executive Orders governing federal contractors
and subcontractors cover the confidentiality of compensation information. However, all of the examples provided in the
Guidance involved employees who were protesting pay discrimination based on
specific information, which would constitute protected opposition discussed
earlier in the Guidance.
Employment and other actions can be retaliatory
even if they do not constitute actionable discrimination because the
retaliation standard is broader than the discrimination standard. An action can constitute retaliation if it
would deter a reasonable person from engaging in protected conduct, even if it
does not actually deter the plaintiff. The
standard obviously includes various employment actions, but can also include
non-employment actions, such as retaliation against someone associated with the
protected employee, defamation, bad-mouthing the employee to the media, poor
job references, surveillance, closer scrutiny of performance, disclosing
confidential information about the employee, etc. That being said, minor and trivial actions
are still not actionable.
An employee’s
opposition activity can lose statutory protection when the employee’s
opposition manifests itself in an unreasonable manner. As examples, the EEOC
discusses employees who make an unreasonable number of specious complaints, badgers
a co-worker to provide or change a witness statement, or involves illegal
conduct (such as threat of violence). “Opposition
to perceived discrimination does not serve as license for the employee to
neglect job duties. If an employee’s protests render the employee ineffective
in the job, the retaliation provisions do not immunize the employee from appropriate
discipline or discharge.”
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
