Introduction
Federal law prohibits employers from retaliating against its employees for engaging in protected activity by subjecting them to adverse employment action(s). What constitutes protected activity is defined by each federal law. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), protected activity can be participating in formal federal proceedings regarding employment discrimination or opposing unlawful discrimination. Generally, adverse employment action is any negative tangible employment action that the employer takes against the employee, i.e. demotion or termination.
What is protected activity through opposition?
Protected activity through opposition broadly includes all the other ways in which an individual can communicate his or her opposition to unlawful conduct, outside of a formal federal agency process(es) for addressing employment discrimination. This protected opposition includes, but is not limited to, verbal or written complaints to the employer, or otherwise engaging in the employer’s formal grievance procedures. In order for an employee’s opposition to employment discrimination to be protected by federal law, the opposition must be based on a reasonable, good faith belief that the conduct opposed is, or could become, unlawful. This includes both a subjective and objective analysis, requiring that the employee believed in good faith and that a reasonable person could believe that the misconduct constituted unlawful discrimination.
How can you establish causation between the opposition and an adverse employment action?
Oftentimes, courts look to the timing, or temporal proximity, between the employee’s protected activity and the employer’s adverse action against an employee. While temporal proximity is not the only way to establish causation for purposes of retaliation, close timing is usually an indicator that the employer had a retaliatory animus in taking the adverse action against the employee. The closer the timing between the two events, the more likely it is that the court will find the employer retaliated against the employee for engaging in protected conduct. Courts have held that a one-month lapse between the two events is sufficient evidence of causation, but anything beyond that must be supported by other evidence. What happens when an employer takes time to investigate an employee’s opposition to employment discrimination?
There are times when the employer decides that it is going to conduct an internal investigation into the employee’s complaint or grievance. If the employer subsequently takes an adverse employment action against the employee, then it may seem that the timing between the initial complaint and the adverse action is too far to establish causation for purposes of a Title VII retaliation claim. However, some courts have looked to the timing between the employer’s conclusion of its investigation and the subsequent adverse employment action. In these cases, courts also look to whether the employee participated in the investigation, continued to make complaints during the investigation, or otherwise monitored the employer’s process of investigation. Thus, if the employer takes six months to investigate the employee’s complaint, and then immediately terminates the employee at the conclusion of its investigation, the employee may be able to demonstrate causation between the complaint and termination through temporal proximity.
If you feel your employment rights have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.