Legally Protected Activity
What is a legally protected activity for which an employer may not retaliate against an employee?
To prove a retaliatory firing, the plaintiff must prove that (1) he/she engaged in “protected activity” and (2) that the plaintiff’s exercise of the protected activity was a motivating reason for the firing, suspension, demotion, etc. So what is protected activity? What employee conduct can employers not “retaliate” against?
Legally Protected Activity - EEOC
The U.S. Equal Employment Opportunity Commission (EEOC) has provided some helpful examples of legally protected activity, applicable throughout the U.S.:
1. Complaining about discrimination against the employee or others;
2. Threatening to complain about discrimination against the employee or others;
3. Providing information in an employer’s investigation of discrimination or harassment;
4. Refusing to obey an order reasonably believed to be discriminatory or illegal;
5. Resisting harassing behavior (The EEOC uses an example of an employee telling a supervisor to “leave me alone”);
6. Intervening to protect others from harassing behavior;
7. Requesting accommodation for a disability or for religious beliefs;
8. Complaining that pay practices are discriminatory (Per the EEOC, there does not need to be an explicit reference to discrimination. For example, if a female employee says her pay is unfair and asks what men are being paid, such conduct would be protected).
This list is not exhaustive, and there could be numerous other examples of protected employee activity. The list does, however, provide some insight as to what types of activities are deemed protected. And while scenario number 1 is the classic example of protected activity for purposes of retaliation, the above list shows that there are actually numerous acts which can constitute protected activity.
Legally Protected Activity - DFEH
In general, under a state of California Fair Employment and Housing Act (FEHA) claim for retaliation, to constitute a “protected activity,” an employee must complain or oppose a practice which is forbidden by FEHA (e.g. sex, race, or age discrimination). Yet courts have held “protected activity” includes complaints or opposition to conduct the employee “reasonably” and in “good Faith” believes to be unlawful, even if the conduct is not actually prohibited under FEHA.
Specifically, the California Supreme Court held “protected activity” occurs “when the circumstances surrounding the employee’s conduct are sufficient to establish an employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order is discriminatory . . . [and] the employee [need] not explicitly inform the employer that she believed the order was discriminatory.” (Yanowitz v. L’Oreal USA INC. (2005) 36 Cal. 4th 1028, 1048.)
To clarify its ruling the Court explained, standing on its own, an employee’s belief her employer is engaging in unlawful conduct is not sufficient to establish the employee engaged in a protected activity. However, the Court reasoned an employee need not actually complain of discrimination in any specific language so long as she adequately communicates her belief that the employer is engaging in unlawful conduct.
Retaliation claims are the most commonly filed complaints with the EEOC and California’s Dept. of Fair Employment and Housing (DFEH). They often arise as a result of the employer's reaction to a complaint from an employee about discrimination or harassment in the workplace, or identification of an employee-witness of illegal conduct.
As such, if the conduct of an employee can in any way be considered a protected activity, think twice before terminating or suspending the employee. It would also be wise to consult with your HR Manager or an attorney well-versed in employment law before taking any adverse employment actions (suspension, firing, demotion, etc.) following an employee’s protected conduct.