Retaliation Claims.

Advice to Employers

With the increasingly common assertion of retaliation claims, what can and should employers do to avoid or defeat these claims? One line of attack that employers should not overlook is a challenge to the assertion that the employee has not, in fact, engaged in 'protected activity.' Case law interpreting Title VII's anti-retaliation provisions gives employers a sound basis for arguing that the employee has not established the 'protected activity' element of the prima facie case of retaliation. Employers should carefully assess whether the employee has engaged in either of the two types of protected activity recognized by Title VII: 1) the employee has opposed conduct that is statutorily prohibited, generally by making a complaint about such conduct internally at the employer or at the applicable equal employment opportunity agency; or 2) the employee has participated in an investigation or other proceedings relating to such a complaint. Hasty or inattentive review of whether the plaintiff has met all the various requirements for showing opposition to an illegal practice or participation in the proceedings around such complaint may lead an employer to miss an issue that could dispose of the retaliation claim. This two-part article addresses the key requirements for establishing 'protected activity,' to demonstrate the scope of available challenges that employers can make on this element of a retaliation claim.