According to the Equal Employment Opportunity Commission (EEOC), retaliation is the most frequently alleged basis of discrimination, and retaliation claims are certainly one of the claims our firm files most often on behalf of our clients. However, not all statements or complaints by employees are legally protected under the major federal anti-discrimination statutes: Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Age Discrimination in Employment Act (ADEA).

The first hurdle in establishing a retaliation claim is showing that the employee engaged in a protected activity. This requirement leads to two questions: What is protected activity? And perhaps more important, what is not considered protected activity under the law?

As a starting point for answering the first question, the EEOC has issued the following non-exhaustive list of what constitutes protected activity:

• Filing or being a witness in an EEOC charge, complaint, investigation, or lawsuit;
• Complaining of discrimination to a supervisor or manager (I would add complaining of discrimination to Human Resources to this list);
• Participating in an investigation of discrimination or harassment by your employer;
• Requesting accommodations for a disability or for a religious practice;
• Resisting sexual advances in the workplace, or intervening to protect coworkers from the same;
• Refusing to follow orders that would result in discrimination; and 
• Asking about salary information of managers or coworkers to uncover potentially discriminatory wages.

Most of these are relatively straightforward, but I frequently get pushback from employers when my client’s retaliation claim is based on an internal complaint of discrimination. As I said above, not all complaints are legally protected. For example, complaining to Human Resources or coworkers that the supervisor is mean, hard to get along with, or just simply doesn’t like the employee is not going to be considered a protected activity under the law. However, if instead the complaint is that the supervisor doesn’t like the employee because of his race, age, gender, disability, etc., that would be considered a protected activity for retaliation purposes. A complaint that the employee doesn’t agree with a disciplinary action or performance evaluation is not going to be considered a protected activity, but if the employee’s complaint connects the disciplinary action or performance evaluation to a prior complaint of discrimination, that would be an additional protected activity by the employee.

Another common complaint I see employees making to their employer is that their manager/supervisor treats them differently than their coworkers. For example, an employee may complain that his supervisor disciplines him more frequently than others or is harder on him than his coworkers. Complaints like this fall into a bit of a gray area on the issue of protected activity. In this situation, it’s important to consider whether the particular workforce is diverse with respect to race, gender, etc., or predominated by one more than the other. For example, a female firefighter who works at a fire station with only male firefighters who complains that she is being treated differently will have an easier time establishing that she engaged in a protected activity than a female employee who works in an office that is equally staffed with men and women.

What is the key takeaway from all of this? The more specific the complaint of discrimination is the more likely it is to be viewed as a protected activity under the relevant anti-retaliation statutes.  

If a person feels they have been subjected to discrimination or retaliation, they should consult with an attorney regarding potential representation immediately, especially because urgent time limitations may affect the potential claims.

• Elizabeth Millender