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

The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.[1] Covered employers” include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

How does the PWFA add to the protections already in place?

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits pregnancy discrimination, meaning that an employer cannot treat an employee in a disparate manner based on their pregnancy. However, receiving accommodations under Title VII has been difficult for pregnant women because a pregnant woman must show that her employer accommodated a coworker in the same or similar position.

The Americans with Disabilities Actof 1990 (ADA) prohibits discrimination based on a disability, including pregnancy-related disabilities like gestational diabetes. However, pregnancy is not a disability under the ADA, and many pregnancy-related symptoms and conditions are not covered.

The House Committee on Education and Labor found the protections provided under Title VII and the ADA “are insufficient to guarantee pregnant workers reasonable accommodations.”[2] The Committee wrote, “No worker should have to choose between their health, the health of their pregnancy, and the ability to earn a living.” Id.

The PWFA strengthens federal protections for pregnant employees by requiring covered employers to provide reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions. The employer must provide the reasonable accommodation, unless the accommodations would create an “undue hardship,” meaning an unreasonable expense or effort, from the employer. Possible reasonable accommodations include sitting or drinking water while working, providing closer parking, flexible hours, extended break times, and leave, and being excused from strenuous activity or activities with dangerous exposure. Id.

In addition to requiring reasonable accommodations, the PWFA states it is unlawful for an employer to:

1. Require an employee to accept an accommodation without engaging in an interactive process with the employee regarding accommodations;
2. Deny employment opportunities based on an employee’s need for reasonable accommodations under the PWFA;
3. Require an employee to take leave if another reasonable accommodation can be provided;
4. Retaliate against an employee for exercising their rights under the PWFA; or
5. Interfere with an employee’s PWFA rights.

Many states, including South Carolina, have state laws prohibiting pregnancy discrimination and mandating reasonable accommodations.[3] The PWFA adds to more protective local, state, and federal laws; it does not replace them. Pregnant workers may be entitled to accommodations under the PWFA, Title VII, the ADA, FMLA, FLSA, and state law.

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

-Beth Bowen

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[1] Pregnant Workers Fairness Act.

[3] See, SC Code § 1-13-80(A)(4); S.C. Code Ann. 1-13-30(T)(2)(b).

Employees file a whistleblower complaint with the Occupational Safety and Health Administration (“OSHA”) if the employer retaliates because of a protected activity relating to workplace safety or health, environmental, cargo containers, airline, commercial motor carrier, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation, railroad, maritime, consumer product, financial reform, consumer finance, mortgage regulations, and securities. Many of our clients are not aware of the laws that require that complaints be filed with OSHA within a certain number of days after the alleged retaliation.

All of the whistleblower laws enforced by OSHA have short deadlines to file a whistleblower complaint. Many of the laws have a 30-day deadline. If you or someone you know has been terminated after they opposed any type of action by their employer that they believe was unlawful, they should immediately contact an attorney. It sometimes happens that people consult with us after too much time has elapsed after termination. Some employees lose viable claims because they waited too long to act.

I have represented clients under nearly all of the OSHA enforced statutes. The law that I most frequently represent clients with OSHA claims is the Occupations Safety and Health Act (“OSH Act”). The OSH Act protects workers who complain to their employer, OSHA, or other government agencies about unsafe or unhealthy workplace or environmental conditions. The OSH Act is one of the laws with the shortest deadlines to file a whistleblower complaint. An aggrieved employee must file a complaint with OSHA within 30 days of the alleged reprisal action, i.e. termination.

There are a few whistleblower laws that do not arise frequently because of the niche nature of the law. For example, I have not yet represented a client with claims arising under the Asbestos Hazard Emergency Response Act (AHERA). AHERA and its regulations require public school districts and non-profit schools including charter schools and schools affiliated with religious institutions to inspect their schools for asbestos-containing building material. To timely preserve an AHERA whistleblower claim, an employee who believes that he or she has been retaliated against in violation of AHERA must file a complaint within 90 days from the time that the adverse action is communicated to the employee.

The cardinal rule is that an employee, believing they were subjected to retaliation, should not wait to consult with a lawyer. I recommend scheduling a consultation as soon as possible.

• Shannon Polvi