Workplace Retaliation

Federal and state laws prohibit retaliation against any person who opposes or complains about nonpayment of overtime pay, sexual harassment, gender discrimination, disability discrimination, age discrimination, pregnancy discrimination, religious discrimination, or any other violation of Title VII, the ADA, the ADEA, the FMLA or the FLSA in the workplace. This prohibition against retaliation also applies to individuals who participate in an investigation into unlawful employment conduct or practices.

Title VII specifically prohibits employers from discriminating against any employee or any applicant because he “opposed … an unlawful employment practice” or “made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. §2000d-3(a). The first section of Title VII cited above is often referred to as the “opposition clause.” The second section of Title VII cited above is known as the “participation clause.”

The opposition clause provides protection for individuals who informally oppose an employer’s illegal activities under Title VII or activities that the individual reasonably believes to be unlawful under Title VII. An employee’s opposition to unlawful employment practices can take many different forms and need not involve opposition in the form of a formal proceeding. An employee can oppose unlawful employment practices by doing things such as supporting a coworker’s claim of discrimination, threatening to file a charge of discrimination, reporting sexual harassment or discrimination against other employees, complaining to a supervisor about workplace sexual harassment, or otherwise informally speaking out against illegal employment activities. Courts use a balancing test to determine which activities fall under the opposition clause of Title VII.

The participation clause strictly prohibits retaliation against individuals for testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.

In order to make a prima facie case for retaliation, an employee must show that he engaged in activity that is “protected” by the law, that he suffered some form of negative employment action, and that a causal connection exists between the protected activity and the negative employment action.