TITLE VII Retaliation
It is unlawful for an employer to discriminate against any employee or an applicant, because he/she has “opposed any practice made an unlawful employment practice by this title...., or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” 42 USCS § 2000e-3(a).
To bring a claim for retaliation a plaintiff must show that:
- the plaintiff “engaged in activity protected under Title VII,”
- “the employer subjected [plaintiff] to an adverse employment decision,” and
- “there was a causal link between the protected activity and the employer's action.” Passantino v. Johnson & Johnson Consumer Prods. (9th Cir. 2000) 212 F.3d 493, 506.
A protected activity may include: making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under the statutes, or opposing acts made unlawful by the statute. 42 USCS § 2000e-3(a). For instance, it would be unlawful for an employer to take actions against a worker who complained, even without good cause, about unlawful discrimination, because to do so would constitute unlawful retaliation. Passantino v. Johnson & Johnson Consumer Products, Inc. 212 F3d 493, 506-507.
Under Title VII, retaliation is employer action that would have been materially adverse to a reasonable employee … [T]hat means the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Ry. Co. v. White (2006) 548 US 53, 57.
Further, an employee may not be retaliated against if the employee opposes activity by the employer which the employee reasonably and in good faith believes to be unlawful. So, an employee who honestly and reasonably believes that an employer is committing a wrong may not be terminated for trying to oppose or report that behavior. Trent v. Valley Elec. Ass’n Inc. (9th Cir. 1994) 41 F3d 524, 526.
Example: A worker discovers a dangerous condition in the workplace, such as walls containing high amounts of lead. The worker requests that the employer corrects the problem, but instead the employer waits a couple of months and terminates the employee so that the employer will not have to replace the walls. Because the employee was entitled to make complaints regarding health and safety in the workplace, the employer’s act of terminating the employee directly because of the complaint constitutes Title VII Retaliation.Contact Us