Section 704(a) of Title VII protects an employee or applicant for employment (and in some circuits a former employee) from adverse
action. Likewise, most federal employment and
discrimination statutes similarly include a prohibition on retaliation. Retaliation
claims generally are analyzed the same, regardless of the
authority under which filed, for the following reasons:
Employees are protected from retaliation on both the bases of participation and opposition:
1. Participation:
Where an employee has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under the relevant statute.
Court’s broadly construe the participation clauses and extend derivative protection where an employer mistakenly believes an employee has engaged in protected conduct and where an employee is related to or allied with someone who engaged in protected activity.
2. Opposition:
Where an employee has opposed any practice made an unlawful employment practice under the relevant statute.
Under the opposition clause the courts are not unanimous on what constitutes protected activity and consideration must be given to
(1) whether the practice opposed must be in fact and in law a violation of the relevant statute;
(2) under what circumstances broad or ambiguous complaints will be interpreted as opposition; and
(3) under what circumstances the form of the opposition, such as unlawful or disruptive conduct, will withdraw statutory protection that otherwise might exist.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
