What protections are afforded to those who oppose discriminatory practices or participate in investigations and/or proceedings?
The opposition clause
The anti-retaliation provisions of Title VII and the Age Discrimination in Employment Act refer to discrimination against an employee because of opposition to any employment practice made unlawful by those laws. This aspect of the retaliation provisions is known as the "opposition clause." The Americans with Disabilities Act also prohibits retaliation for opposition to an act that is unlawful under the ADA. Thus, the ADA prohibits retaliation not only for opposing disability-based employment discrimination, but also for opposing disability discrimination in state and local government services, public accommodations, commercial facilities, and telecommunications.
How can opposition be expressed? Opposition to unlawful employment discrimination practices may take various forms. Some of the most common forms of opposition recognized by the EEOC include:
- Threatening to file a charge, complaint, grievance, or lawsuit alleging discrimination.
- Complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination.
- Nonverbal opposition, such as picketing or engaging in a production slow-down.
- Broad and ambiguous complaints of discrimination, if some part of the protest or surrounding circumstances specifies the nature of the perceived discrimination.
- Refusing to obey an order because the complainant reasonably believes that it constitutes unlawful employment discrimination or makes discrimination a term or condition of employment.
- Requesting reasonable accommodation of a disability.
- Requesting religious accommodation.
Can the protection be lost? Although broad protection is provided to individuals who oppose employment discrimination, an individual who files a retaliation charge is not insulated from legitimate disciplinary procedures. When opposition takes on a form that interferes with an employer's legitimate business interests, the opposition may lose its protection. Questions to ask include:
- Was the manner of opposition reasonable?
- Did the opposition involve violence?
- Was the opposition activity legal?
What if the acts a person opposes turn out to be lawful? A person is protected against retaliation for opposing perceived discrimination if that person had a reasonable and good faith belief that the opposed practices were unlawful. Any inquiry into protection for opposing retaliatory conduct must also ask:
- Did the individual have a good faith belief that the practice was unlawfully discriminatory?
- Were the employee's charges deliberately false or malicious?
The participation clause
The employment discrimination laws bar reprisals against employees who have filed a charge or testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. The part of the retaliation provision relating to this kind of activity is known as the "participation clause."
The courts have had little difficulty countering arguments posed by employers in retaliation cases involving the participation clause because it is seen as a necessary corollary to the legal rights granted by the employment discrimination laws.
The clause generally covers individuals who merely threaten to file charges, those who cooperate in an investigation, and those who visit governmental fair employment agencies in search of information about their legal rights. The participation clause may also shield from retaliation those employees who participate in an in-house investigation initiated in response to receipt of an EEOC notice of a charge of discrimination.
What if the underlying charge is without merit? Protection under the participation clause is available regardless of the validity or reasonableness of the original charge.
What are some tips for preventing retaliation charges by employees who participate in EEO proceedings? Some tips for preventing retaliation charges by employees who participate in EEO proceedings include:
Avoid unequal treatment. Employers should take care to treat employees participating in Title VII proceedings on behalf of discrimination claimants the same as individuals who participate in such proceedings on behalf of the employer.
Establish an independent basis for discipline. The ban on retaliation for participation in Title VII proceedings does not prevent an employer from disciplining an employee when discipline is warranted. However, discipline can never be based an employee's participation in protected proceedings. Since unlawful motive is the key, employers must be careful not to create an appearance of unlawful motive.
Don't try to limit participation rights. Promises not to file a charge or participate in an EEOC proceeding should not be included in agreements such as contracts requiring the use of alternative dispute resolution procedures, waiver agreements, employee handbooks, employee benefit plans, and noncompete agreements. Such promises are generally not enforceable and they may also amount to separate and discrete violations of the antiretaliation provisions of the civil rights laws.
Title IX
Title IX of the Education Amendments of 1972 creates an implied private right of action for retaliation against individuals who complain about sex discrimination in education programs and activities receiving federal financial assistance.
Reprinted with permission. © CCH
What protections are afforded to those who oppose discriminatory practices or participate in investigations and/or proceedings? The opposition clause The anti-retaliation provisions of Title VII and the Age Discrimination in Employment Act refer to discrimination against an employee because ...
What protections are afforded to those who oppose discriminatory practices or participate in investigations or proceedings?
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