Not all opposition is legally protected opposition pursuant to the retaliation doctrine.
However, the employee's complaint dealt generally with "bullying and harassment," that the supervisor "has it out for me," "doesn't like me," and is "trying to create a negative paper trail against me"; thus, the court found no protected activity under Title VII for retaliation claim because nothing in the plaintiff's email indicated, "explicitly or implicitly," that the supervisor's treatment of the plaintiff employee was because of her sex.
Tanner Medical Center (2016), the employee complained to her supervisor about the fact that she was still in orientation and that she had scheduling issues and that "it was obvious that someone had dropped the ball on her." However, there was insufficient evidence that she told her supervisor, or brought to the attention of human resources, the fact that a co-worker had made race-based comments about her; thus, without the connection to a protected characteristic, her retaliation claim failed due to a lack of properly opposing it.
Retaliation law, moreover, makes a critical distinction between "participating" and "merely" opposing discrimination.
As to the reasonable manner requirement, this aspect of the law, according to the EEOC, might properly encompass the employee complaining outside the company or organization's chain of command or prescribed complaint procedure depending on the circumstances, but would not include any violence or threats of violence in the opposition (EEOC, Enforcement Guidance on Retaliation, 2016).
The retaliation doctrine makes it illegal for the employer to take a materially adverse action against an employee, job applicant, or other individual because of a person's protected activity (EEOC, Enforcement Guidance on Retaliation, 2016).
In determining whether a reasonable worker work be deterred, "context matters." The significance of any given act of retaliation will often depend upon the particular circumstances because an act that would be immaterial in some situations is material in others.
The following work-related actions have been construed as "adverse," to wit: discharge, early termination, placement on leave, refusal to hire, demotion, suspension, denial of promotion, denial of benefits, warnings, reprimands, transfers, negative or lowered evaluations or appraisals, negative references or recommendations, transfers to less prestigious and/ or desirable positions or locations, abusive or punitive scheduling, disproportionate workloads, monitoring o: surveillance, exclusion from teams or groups, sabotage of the employee's work, threats to report immigration status, and disclosure of confidential information (EEOC, Enforcement Guidance on Retaliation, 2016; Plain, 2011/2012).
Note initially that one Court of Appeals pointed out that "the adverse-employment-action inquiry for a retaliation claim has a much lower bar than for a Title VII claim of discrimination (Carter v.
Prince William County, Virginia (2016), the court overruled the federal district court, which summarily disposed of the employee's retaliation claim on the basis of no adverse employment action because, along with the reassignment, the employee was denied a "deserved pay increase," she "had her office and equipment taken away or limited," and she "was excluded from meetings and given unattainable goals in her performance evaluation".
Finally, to clearly show how far the courts have gone in protecting employees from adverse actions, the Supreme Court in one case held that the company giving a negative reference to a former employee who had filed a claim of discrimination with the company but subsequently left for another position and did not pursue the claim suffered retaliation because the retaliation protection in Title VII encompasses both current and former employees (Robinson v.
A critical element to a retaliation lawsuit is the presence of a causal connection or nexus between the employee engaging in protected activity and the employers retaliatory action, for example, a discharge of the employee.