Protected Activity

Protected activity in the workplace is, essentially, a legal definition that defines activities that workers may engage in without fear of retaliation by supervisors or employers. It is important for employers to understand this because retaliation claims are routinely the most commonly filed cases to come before the federal Equal Employment Opportunity Commission (EEOC). More often than not, these actions could have been avoided had workplace supervisors and employers had a better understanding of protected activity.

Concerted Activity and Protected Activity

Title VII of the National Labor Relations Act stipulates that workers have the right to “concerted activity,” which means they can form or join a representative organization in order to bargain collectively or for other mutual aid or protection purposes.

It is generally regarded as concerted activity when two or more employees act together to address an employer in an attempt to improve employment terms and workplace conditions. They even have the right to do so in “right-to-work” states without union representation.

“Protected activity” is generally more applicable to protecting an individual from workplace retaliation. In addition to being outlined in the National Labor Relations Act, it is defined in the Age Discrimination in Employment Act, the Family and Medical Leave Act and the Americans with Disabilities Act, among others.

Unfettered Access to Remedial Measures

Retaliation to protected activity by workplace supervisors and employers is regarded by the EEOC as one the most common and serious types of misconduct by employers. An essential component of illegal retaliation is to recognize that employees have a right to “unfettered access to remedial measures” and that workers must be protected in his or her ability “to engage in protected activity or opposition to an illegal employment practice.”

Workers who inform employers that plan to file charges or a complaint through a workplace’s internal reporting procedures, or refuse to follow an order or practice that they believe to be discriminatory or illegal, are usually protected from retaliation under federal protected activity definitions.

Opposition and Participation Clauses

The primary issue in many retaliation claims that come before the EEOC is if a worker’s participation in “protected activity” fostered retaliation from a supervisor or employer. Federal law prohibits supervisors from engaging a retaliation against a worker because she or he has “opposed any practice made an unlawful employment practice” – such as opposed perceived discrimination -- or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” in regard to the allegation.

These are defined in Title VII as the “opposition” and “participation” clauses. Since the level of statutory protection afforded between the two clauses differs, the distinctions between them are essential to understand.

The “opposition” clause can include conduct outside charges before the EEOC, such as court proceedings, so protected activity can engender broader protections than those stipulated within the “participation” clause. A requirement of protected “opposition” is the employees must be acting under “a reasonable, good-faith belief that they are opposing an unlawful employment practice.” That is not a requirement of protected participation.

The “participation” clause is applied when a worker files formal discrimination charges with the EEOC or another federal or state enforcement agency, communicating allegations and providing evidence and assisting or participating in subsequent investigations and ensuring court proceedings.

Employees engaged in “opposition” activities to what they allege is an unlawful, discriminatory practice can be legally fired if it is determined that their complaint is not based on a good faith and a reasonable belief that the supervisor’s or employer’s workplace activity was illegal by federal or state law.

“Opposition” activities that are, essentially, gripes workplace activity not defined as discriminatory in Title VII, or result in the disclosure of proprietary or confidential company information, or is simply an excuse not to perform assigned tasks, also do not warrant protection from retaliatory measures by supervisors and employers.

Breaking Down Opposition Activities

The EEOC Compliance Manual offers these examples of protected opposition:

  • Threatening to file charges or formal complaints alleging discrimination.
  • Complaining about alleged discrimination against the employee or other workers.
  • Refusing to obey an order because of a “reasonable belief that it is discriminatory

While there is some agitation that the EEOC has an overly broad definition of what it can classify as “opposition,” particularly from employers, generic grumbling over benefits or job assignments do not qualify as protected activity.

Protections Afforded Under Participation Clause

The “participation” clause generally offers broader protections than those outlined by the “opposition” clause because courts can still determine there was retaliation regardless if the employee has unreasonable beliefs about their protected activity or if their actions were “in bad faith, malicious or defamatory” because discriminatory behavior is illegal in the workplace.

Workers who are actively participating in an administrative procedure or judicial process cannot be legally terminated even if their involvement stems from, or fostered, false allegations filed in bad faith or “gratuitous disclosures of confidential company information.”

Adverse Actions that Constitute Retaliation

Firing, laying off, blacklisting, demoting, denying overtime, withholding a promotion, disciplining, denying benefits, refusing to hire or rehire, intimidating, threatening, reassigning, reducing pay or punitive rescheduling of hours are all regarded as “adverse actions” if these measures are taken in retaliation for a worker engaging in a protected activity.

States Can Further Define Protected Activity

While the National Labor Relations Act (NLRA) provides definitions for protected activity against workplace retaliation, most states have labor laws that offer added protections. Below, for example, is how California labor laws define four basic types of protected activity:

  • Safety/Health Violation Complaint: Addressing a safety violation or an unsafe condition by filing an oral or written complaint to workplace supervisor, employer, union or other employee representative or a government agency.
  • Proceeding Participant: The worker is involved in a proceeding or investigation into alleged workplace violations.
  • Function: If a worker files a compliant as a result of his or her function, such as being on a health and safety committee.
  • Refusal To Work: If an employee refuses to work, carry out a task, follow direction because he or she deems the assignment to be unsafe or discriminatory, they must show that there is “a real and apparent hazard regarding safety and health” to them and their co-workers and the they “believe that the hazard violates a health and safety standard, order, or law."

Examples of Protected Activity

Continuing further with California labor laws, here are examples of what would meet the criteria of protected activity in that state:

  • Request an inspection by filing a complaint with the California Division of Labor Standards Enforcement (DLSE).
  • Complain to an employer, a labor union, the state’s occupational safety and health agency, or other government agency, regarding alleged job health and safety hazards.
  • Request Safety Data Sheets (SDSs) for hazardous materials you work with or to be provided the required documents about potential hazards you may be exposed to from an employer.
  • Request recommended precautions and procedures, including training, to take when working with materials and equipment regarded as potentially hazardous.
  • Refuse a task or an assignment that a “reasonable person” would see as creating “a real danger of death or serious injury.”
  • Share concerns regarding potential safety and health risks with fellow employees in the workplace.
  • Request ambient environmental data, such air quality testing, noise calibration, or any other pertinent data-collection samples and tests.
  • Respond to questions from a state labor or occupational health and hazard inspector and honestly identify issues of concern, including revelations regarding accidents or illnesses that may have occurred as a result of conditions and informing officials of instances when the employer temporarily remedied the hazard in response to agency actions.
  • Request instructions about procedures to be followed in the event of an emergency or an accident that could expose anyone in the workplace to toxic substances.
  • Report injuries and illnesses to a workplace supervisor or employer.
  • File a workers’ compensation claim.
  • Participate in union or other protected concerted activities in response to, or related to, workplace health and safety issues.
  • Engage on an individual, private basis with federal or state officials on a confidential basis.
  • Truthfully reveal to an inspector that a workplace supervisor or employer has been notified of hazards but has not provided you or fellow workers with the mandated training.

Examples of What is Not Protected Activity

Passive inaction is not defined by federal or state law as a protected activity. Therefore, there is no protection for workers who do not respond to a hazardous or discriminatory violation of labor laws until after an employer retaliates.

For instance, if employees work in an unsafe workplace and do not complain about conditions, do not initiate proceedings or testify in hearings or investigations into potential violations of health and safety regulations and laws, do not participate in an occupational safety or health committee, or do not refuse to work when there is a safety violation that poses a potential hazard to themselves or others then federal or state agencies can offer little protection to any retaliatory actions.

Court Rulings That Have Extended Protected Activity Provisions

There is a litigation trend in court rulings expanding the circumstances in which workers can seek remedies for workplace retaliation lawsuits. Among significant rulings is the 2008 United States Supreme Court decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, which determined that a co-worker who answers questions about an employee’s allegedly improper conduct during an internal workplace discrimination or harassment proceeding is engaged in what meets the legal definitionof a "protected activity" under the Civil Rights Act of 1964’s Title VII.

The fallout from that ruling is that any “adverse action” taken against the employee who is a witness or provides testimony as part of an investigation into workplace discrimination or unsafe conditions on the part of the employer can result in a retaliation claim being filed against.

Title VII's Post-Crawford Anti-Retaliation Provision

Before the Supreme Court's Crawford ruling, federal district and appellate courts, as well as state courts, had issued conflicting decisions regarding how participation in an investigation could be defined. Some rulings placed it within the opposition clause and others within the participation clause, where the protected activity provisions of Title VII apply.

As a result, Title VII's anti-retaliation stipulations now make it unlawful to retaliate against a worker because he or she has:

  • “Opposed any practice made an unlawful employment practice” as defined by the provisions in Title VII. This is covered under the opposition clause.
  • “Made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing” initiated under the provisions of Title VII. This is covered under the participation clause.

Training and Awareness

Employers and workplace supervisors need to be aware of what constitutes protected activity and retaliation as well as how the complaint process in their state works. Often, retaliation can be an inadvertent response that can be readily defended if the employer had followed steps and procedures that documented the cause for their actions, or established up-front policies that could be safeguards in avoiding actions that, even when justifiable and well-meaning, were executed poorly, creating an environment where the company could be liable for a retaliation claim.

Protecting Yourself And Your Business

If you find yourself as a workplace supervisor or as a business owner in a situation involving a retaliation claim, you need to contact an employment attorney that can assist you with defending your business against the claim or mitigating its impact. Of course, the best defense against a retaliation claim is to understand the conditions that foster such proceedings and avoiding them.

Retaliation claims are often a component of workers challenging termination. UpCounsel offers a free guide, ‘ How Companies Can Protect Themselves When Terminating an Employee,’ that offers policies and procedures that will reduce this risk. Many of these issues can also be avoided by creating an employee handbook that covers all the bases.

If you have questions about protected activities and retaliation, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.