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What is required for the “protected activity” element of Title VII retaliation claims in initial pleadings?



Title VII of the Civil Rights Act of 1964 (“Title VII”) protects against discrimination based on race, color, religion, sex, and national origin. Within the Title VII statute, there is also a retaliation provision that protects employees from retaliation when they report discrimination based on one of the protected characteristics listed in the statute.

Throughout the different stages of litigation, there are different evidentiary burdens a plaintiff must meet to keep moving forward with his or her case. First, there is the initial pleading burden that requires a plaintiff to plead facts sufficient to put the defendant on notice of his or her claims. Once the plaintiff has met the pleading burden, then he or she will have to meet the evidentiary burden applied at the summary judgment stage of litigation. This evidentiary burden can vary depending on the type of case and what evidence the plaintiff has to prove his or her claim. In many employment litigation cases, including retaliation claims, the plaintiff must establish his or her claim using the McDonnell Douglas burden-shifting framework.

Pleading Retaliation Claim

At the initial pleading stage, a plaintiff is only required to plead facts that put the defendant on notice of his or her claim. For a Title VII retaliation claim, the plaintiff is only required to demonstrate that the defendant discriminated or took an adverse employment action against the employee because he or she opposed any unlawful employment practice. This initial pleading requirement is lower than what will be required later. The burden is lower in the beginning because at that point the plaintiff has not been afforded the opportunity to gather evidence during the discovery phase of litigation. Rather, this burden is the initial threshold that asks the court to permit the plaintiff to gather evidence. Once the plaintiff has met the initial burden, then the plaintiff can begin to collect evidence to meet the summary judgement standard.

At summary judgment, a plaintiff is required to prove specific elements using evidence from the record. These elements include: (1) protected activity; (2) an adverse employment action; and (3) causation. Once the plaintiff has met this burden, then the defendant has an opportunity to offer evidence demonstrating that it did not retaliate against the employee. After the defendant has met its burden, the plaintiff is given another opportunity to establish that the defendant’s offered evidence was not the real retaliatory reason. Thus, the pleading burden varies depending on the various stages of litigation.

If you feel your rights under Title VII 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.

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