Gubler & Abbott

What constitutes "protected activity" for purposes of retaliation?

People throw around the phrase "wrongful termination" all the time. It's probably a rare occurrence when a terminated employee does not think their firing was "wrongful." But legally speaking, what is a wrongful termination? In essence, it's an illegal termination, usually one involving either discrimination or retaliation. This article will focus on the second scenario - cases of retaliation.

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? The Equal Employment Opportunity Commission (EEOC) has provided some helpful examples:

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.

Retaliation claims are very popular with plaintiff's lawyers, and are probably the most commonly filed complaints with the EEOC and California's Dept. of Fair Employment and Housing (DFEH). 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.


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