Wrongful Termination: Participation as Protected Activity

A variation of wrongful termination occurs when a person is fired because he or she participated in the investigation of discrimination in the workplace. The anti-retaliation provisions of the employment discrimination laws make it unlawful to discriminate against an individual because he or she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under:

• Title VII of the Civil Rights Act of 1964, as amended;


• the Age Discrimination in Employment Act (ADEA);


• the Equal Pay Act (EPA); or


• the Americans with Disabilities Act (ADA).

This protection applies to individuals challenging employment discrimination under the statutes enforced by the Equal Employment Opportunity Commission (EEOC) in EEOC proceedings, in state administrative or court proceedings, as well as in federal court proceedings, and to individuals who testify or otherwise participate in such proceedings.

Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable

The anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process. While the opposition clause [of Title VII] applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause [of Title VII] applies to all individuals who participate in the statutory complaint process.

Thus, courts have consistently held that a respondent (i.e., the employer) is liable for retaliating against an individual for filing an EEOC charge regardless of the validity or reasonableness of the charge.

To permit an employer to retaliate against a charging party (e.g., an employee) based on the employer's unilateral determination that the charge was unreasonable or otherwise unjustified would chill the rights of all individuals protected by the anti-discrimination statutes.

The Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation

The retaliation provisions of Title VII, the ADEA, the EPA, and the ADA prohibit retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.

For example, it would be unlawful for a respondent (i.e., the employer) to retaliate against an employee because his or her spouse, who is also an employee, filed an EEOC charge. Both spouses, in such circumstances, could bring retaliation claims.

The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent

An individual is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity.

For example, a violation would be found if a respondent refused to hire the charging party because it was aware that she filed an EEOC charge against her former employer.

[Source: EEOC compliance manual]

A person's participating in proceedings investigating discrimination constitutes the protected activity, which -- when followed closely by an adverse action, such as wrongful termination, by the employer -- can serve to demonstrate an impermissible causal connection supporting the claim of retaliation by wrongful termination.

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Wrongful Termination: Opposition as Protected Activity

A variation of wrongful termination occurs when a person is fired because he or she opposed discrimination in the workplace. The anti-retaliation provisions of the employment discrimination laws make it unlawful to discriminate against an individual because he or she has opposed any practice made unlawful under the employment discrimination laws. This protection applies if an individual explicitly or implicitly communicates to his or her employer or other covered entity [there are some minimum limits on the businesses or entities covered] a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the Equal Employment Opportunity Commission (EEOC).

Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA) prohibit retaliation based on opposition to a practice made unlawful by those statutes.

The Americans with Disabilities Act (ADA) prohibits retaliation based on opposition to "any act or practice made unlawful by this chapter." The referenced chapter of the ADA prohibits not only disability-based employment discrimination, but also disability discrimination in state and local government services, public accommodations, commercial facilities, and telecommunications. Thus, the ADA prohibits retaliation for opposing not just allegedly discriminatory employment practices but also practices made unlawful by the other titles of the statute.

Some examples of opposition are:

• Threatening to file a charge or other formal complaint alleging discrimination;


• Complaining to anyone about alleged discrimination against oneself or others;


• Refusing to obey an order because of a reasonable belief that it is discriminatory; and


• Requesting reasonable accommodation or religious accommodation.

[Source: EEOC compliance manual]

A person's opposing discrimination constitutes the protected activity, which -- when followed closely by an adverse action, such as wrongful termination, by the employer -- can serve to demonstrate an impermissible causal connection supporting the claim of retaliation by wrongful termination.

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Technorati tags: wrongful dismissal, wrongful discharge, opposition, protected activity, wrongful termination.


wrongful termination

Retaliation: Build Your Case Against Workplace Retaliation!

Retaliation in the workplace occurs when your employer takes some adverse action against you or a member of your family that follows closely after you either have made a formal complaint to certain government agencies (such as the Labor Department, or the Equal Employment Opportunity Commission) or have participated in the investigation of a complaint.

Certain federal and state laws prohibit an employer from retaliating against an employee because of that employee exercising his or her rights.

There are provisions against retaliation in:

• the federal labor laws


• federal and state wage and hour laws


• federal and state laws against discrimination


• federal and state occupational safety and health laws


• state worker compensation laws


• federal whistleblower laws


• federal corporate ethics laws

Retaliation claims generally have three parts to them, which you as the person bringing the claim must set forth and demonstrate by evidence. The three elements are typically: (1) a protected action, (2) an adverse action, and (3) a connection between (1) and (2) that demonstrates that (1) caused (2). For example, with the EEOC, there are three essential elements of a retaliation claim:

1. there was opposition to discrimination or participation in covered proceedings (such as an investigation);


2. there was adverse action taken against the complainant; and


3. there was a causal connection between the protected activity and the adverse action.

Frequently in instances of retaliation, there is a pattern of escalating behavior over time, which -– if it can be made clear –- helps to support your claim that your employer retaliated against you for something you did. So, as soon as you think that your employer may be retaliating against you, you need to start preparing a listing of events -- in chronological order -- detailing actions you took and actions of the employer’s managers and supervisors that you feel are adverse to you. The best way to do this listing is on a computer, because you can easily insert rows or lines for events that come to your mind later, as you reread the chronology.

Try to backtrack to earlier events and be as detailed as possible. Continue the chronology from the present time while you continue to reconstruct and recapture past events. Remember, it is close linkage in time between the protected activity and the adverse action that helps to demonstrate the causal connection supporting the retaliation claim.

Subsequent posts will address more detail about retaliation.

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Technorati tags: wrongful termination, wrongful dismissal, wrongful discharge, employment law, human resources, retaliation.

Resources for Wrongful Termination

Wrongful termination is a complex issue, but with some effort you can learn a lot. Here are some resources to gain information about your rights and about employment law issues:

• U.S. Department of Labor - Wages and Hours



• U.S. Department of Labor's Employee Benefits Administration - Employee Benefits



• U.S. Equal Employment Opportunity Commission - Discrimination and EEO

Please use these resources to inform yourself further about wrongful termination.