Employer Retaliation, Part 2: What Is “Protected Activity” by an Employee That Can Support a Retaliation Claim?

By Breanne N. Gilliam

Arguably, any adverse employment action – from termination to demotion to disciplinary action – constitutes “retaliation.” However, when motivated by job-related deficiencies such as poor performance, chronic absenteeism, or employee misconduct, these “retaliatory” actions are well within an employer’s legal rights. Adverse actions only rise to the level of illegal retaliation when such actions are motivated in whole or in part by an employee’s involvement in “protected activity” as defined by federal and state law. Employers who engage in illegal retaliation expose themselves to costly and disruptive employment discrimination claims, as well as significant legal, financial, and reputational damage.

To be viable, a retaliation claim generally requires three elements: (1) the employee engaged in protected activity, (2) the employer took a materially adverse action against the employee, and (3) there is a causal connection between the protected activity and the adverse action. Failing to prove any element can be the basis for dismissing the claim. 

In this latest post in our series about retaliation, we’ll address what counts as “protected activity,” what “good faith” protection employees have, and how HR should approach discipline or other decisions when protected activity is in the picture. 

What is Protected Activity?

As discussed in our first retaliation post, a host of federal laws (e.g., Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act) and Michigan laws (e.g., the Elliott-Larsen Civil Rights Act) contain provisions that prohibit retaliation against an employee for engaging in “protected activity.” While the specific language may differ from statute to statute, protected activity generally refers to an employee’s “participation” in or “opposition” to conduct that violates state or federal employment laws.

“Participation”

“Participation” involves taking part in a legal process, giving testimony, or assisting in an investigation or lawsuit concerning alleged discrimination or retaliation. 

Examples of protected “participation” could include:

• Filing a formal charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights (MDCR) alleging sex or race discrimination.
• Cooperating with an EEOC or MDCR investigation, including responding to questions, providing documents, or participating in an interview with an investigator about another employee’s discrimination complaint.
• Testifying under oath in a deposition, hearing, or trial involving a discrimination or harassment claim against the employer.
• Submitting a written statement or affidavit concerning a pending discrimination complaint being investigated by the employer’s internal HR department, the EEOC, or the MDCR.
• Helping a colleague draft or prepare their formal charge or gather supporting documentation for submission to the EEOC or MDCR.
• Answering questions in an employer’s internal investigation triggered by an official charge by the EEOC or MDCR.
• Filing a lawsuit in court alleging discrimination or joining an existing case as a co-plaintiff.
• Appearing, testifying, or providing documents in response to a subpoena or court order in a discrimination or retaliation case. 

“Opposition” 

“Opposition” as a protected activity is when an individual is opposing any practice made unlawful under applicable employment discrimination statutes. This includes actions in which an employee resists, protests, or otherwise communicates opposition to an unlawful employment practice. Michigan courts have held that even informal, internal complaints can qualify as protected opposition if they are sufficiently specific to alert the employer that discrimination or another legal violation is being alleged.

Examples of “opposition” that can constitute protected activity may include:

• An employee tells their manager they believe they are being treated unfairly or denied promotions because of their race, sex, or age.
• An employee tells a coworker or supervisor to stop making racist or sexist jokes or otherwise challenges biased remarks.
• A supervisor instructs an employee not to hire applicants of a certain race or religion, and the employee refuses to comply.
• An employee expresses support for a coworker who has complained of discrimination or testifies internally on their behalf during an HR investigation.
• An employee submits a written complaint to human resources alleging gender bias in pay or promotion decisions.
• An employee reports that another coworker was retaliated against for filing a discrimination complaint.
• An employee objects to a company dress code or grooming policy that disproportionately affects employees based on race, gender, or religion.

“Good Faith” Is Enough To Trigger Employee Protections, Even if Claim Is Unsuccessful

 Anti-discrimination and anti-retaliation laws are designed to encourage employees to come forward and report illegal activity. Thus, participation and opposition are broadly protected. Opposition is protected if the employee holds a reasonable, good-faith belief that the challenged practice is unlawful, even if the claim later proves incorrect. Participation is also broadly protected, even if the underlying allegation is ultimately found to lack merit. However, this “good faith” protection does not extend to employees who knowingly make false statements, are dishonest, or engage in disruptive or threatening conduct. 

Engaging in protected activity does not shield employees from legitimate, nonretaliatory performance management. Employers may proceed with well-supported, consistently applied actions, provided the reasons are independent of the protected activity and are documented with specificity. When protected activity is in the picture, employers should slow down, separate the issues, and document. Employers should also do a secondary review for adverse decisions made close in time to a complaint and ensure legitimate business reasons are clear, specific, and consistent with past practice. 

NEXT: What is an “Adverse Employment Action”?