Most laymen have the rough idea that there are things an employer cannot legally fire someone for doing. However, especially when determining federal vs. state regulations, not as many can identify the actions that someone may not be terminated for doing. This can have severe effects, as it is not uncommon for someone to be terminated when technically it should not have been legally done. Knowing what constitutes ‘protected activity’ under employment law can make all the difference.
Employment Laws – Retaliation
Protected activity is an activity that may not be punished by any kind of retaliatory action. However, it often is, leading to charges filed with the Equal Employment Opportunity Commission (EEOC). Retaliation claims under various statutes like the Americans With Disabilities Act (ADA) and the Title VII made up 44.5 percent of all claims investigated by the EEOC in 2015, with almost 80 percent of those coming under Title VII.
Retaliation used to have a much narrower definition, but in 2009, the case of Crawford v. Nashville (2009) was decided by the Supreme Court in favor of a woman terminated after participating in the investigation of a coworker for sexual harassment. Essentially, the court held that any adverse action taken against a worker after an internal investigation in which they participated (as someone other than the accused) may be grounds for a retaliation claim, if sufficient evidence can be shown. This broader scope has been used ever since, which helps employees in calling out discriminatory or retaliatory behavior.
Examples of Protected Activity Under Employment Laws
With further clarification of what may give rise to a retaliation claim, it is generally easier to pinpoint activity that may not be disciplined. Title VII in particular lists several examples, but depending on the statute you choose to file under, it is generally a good idea to double check the law. Generally, you may not be retaliated against for either participating in an investigation or for performing certain ‘oppositional’ activities or activities out of the ordinary that are still necessary. Examples include:
- Requesting accommodations under the ADA or another relevant act
- Serving as a witness or other informant in any internal investigation of potentially discriminatory practices
- Refusing an order that you reasonably believe to be discriminatory
- Joining a strike or other law-abiding protest against discriminatory actions or behavior
- Any other action based on a “reasonable, good-faith belief” that a certain practice violates discrimination law
It is important to note that certain oppositional actions are not protected, despite their nature of opposing discrimination—namely, demonstrations or acts that are unlawful, such as unprovoked violence or anything that may render an employee unable to do their job, such as calling in bomb threats or otherwise disrupting productivity for all.
Get Help From a Charleston, SC Employment Law Attorney
While some actions are obviously beyond the pale, it can be hard to determine whether certain choices are ‘protected’ or not. Consulting a knowledgeable employment law attorney can help. Attorney A. Christopher Potts and the employment discrimination attorneys of Hitchcock & Potts have many years’ experience in these types of cases.
Contact our Charleston firm today for a consultation on your case.