February 8th, 2013 | Lorene Park
Most employers know it is unlawful to retaliate (take an adverse employment action) against an employee who engages in an activity protected by Title VII. Protected activities include opposing discriminatory practices and/or participating in an investigation, proceeding, or hearing under Title VII. Activities falling within the participation clause are fairly easy to spot and include things like filing an EEOC charge, cooperating with an internal investigation, or serving as a witness in an investigation. What is less clear is what constitutes a protected activity under the opposition clause.
Opposition activities. An EEOC Guidance provides these examples of “opposition:”
- Complaining to anyone about alleged discrimination against oneself or others;
- Threatening to file a charge of discrimination;
- Picketing in opposition to discrimination; or
- Refusing to obey an order reasonably believed to be discriminatory.
In practice, the list of activities protected under the opposition clause is growing as courts tend to define the term broadly. In a January 24, 2013 decision for example, a federal district court found that an employee’s act of forwarding, without comment, a male subordinate’s email complaint about coworkers could be protected “opposition” activity (Hiter v Multiband EC Inc, CDIll, 2013). The subordinate’s email complained about female coworkers’ flirting and lewd comments. To the court, while simply forwarding an email may not always constitute opposition, it could here because the employee’s prior attempt to discipline a subordinate was thwarted. A jury could thus find that she felt she could do no more than make upper management aware of problems by forwarding emails. The court noted that it was not necessary to use “magic words” such as “sex discrimination” if the opposition was based on a subjectively sincere and objectively reasonable belief that the employee was opposing conduct made unlawful by Title VII.
Likewise, the court found that the employee’s own email complaint to a supervisor that she had heard that one of her female subordinates (with whom she had a contentious history) was spreading rumors that the employee slept with a coworker could be opposition to the subordinate’s attempt to demean her in a sexual way. This was particularly true where it was disputed whether the employee had the authority to discipline the subordinate without approval from higher level managers.
Use caution. There are limits to what is considered oppositional activity and the EEOC provides examples of activities that are not protected, such as threats or acts of violence. However, given that whether an activity is protected under Title VII is a fact-sensitive inquiry, employers are well-advised to adopt a broad interpretation of what constitutes opposition to unlawful practices and caution managers to act (or refrain from acting) accordingly. If there is an argument that can be made that an employee’s comment or action (including a passive action like forwarding an email) communicates an allegation of unlawful conduct, consider it a protected activity. Additional information about protected activities is provided in the EEOC Compliance Manual, Section 8, Chapter II, Parts B and C.