Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Q. I did not file any formal complaint after my supervisor sexually harassed me, but I did make it crystal clear to management that I was not happy with the situation. Am I still protected against retaliation?
A. Employees can fight sex discrimination and sexual harassment by either participating in the legal system created by Title VII of the Civil Rights Act to counter this problem, or by opposing such unlawful conduct in the workplace. Either way, employees should be protected against retaliation. However, it is not always easy to prove an employee’s opposition activity is protected under the law.
Title VII protects workers who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” For the most part, these participation protections address activities that are straightforward and tied to definitive actions: either an employee filed a lawsuit in federal court or a complaint with the Equal Employment Opportunity Commission, or he or she did not; or either an employee talked to an investigator or testified in court, or he or she did not.
Title VII also protects workers who “opposed any practice made an unlawful employment practice.” However, as the U.S. District Court for the Eastern District of New York noted in Perry v. Kappos (2011), “‘opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful…’ whereas ‘[participation] activity is protected conduct regardless of whether that activity is reasonable.'” Not only must the employee’s belief that the employer engaged in discrimination be reasonable; so, too, must the employee’s opposition activity be reasonable.
The utilization of formal grievance procedures, informal protests and the vocalization of opinions all fall within the meaning of opposition activity, according to the 4th U.S. Circuit Court of Appeals in Laughlin v. Metropolitan Wash. Airports Auth. (1998). Such opposition activity should not be “disruptive or disorderly,” and it must strike a balance between the intent of the law and Congress’ “desire not to tie the hands of employers in the objective selection and control of personnel.”
In Laughlin, the 4th Circuit found that a secretary who copied confidential information and sent it to an outside party — believing the information represented the employer’s attempt to cover up a discriminatory act — engaged in opposition activity that was “disproportionate and unreasonable under the circumstances.” Consequently, the court found the secretary’s actions did not merit protection against retaliation under Title VII and the employer’s decision to terminate her “was sound.”
One type of opposition activity that merits Title VII’s protection against retaliation involves “complaining to the employer… and participating in an employer’s informal grievance procedures… when done in a manner that is ‘not disruptive or disorderly,'” the 4th Circuit noted.
Employees who believe they have been subjected to unlawful retaliation, either for their participation of opposition activity, should immediately consult with an employment law attorney.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com.
The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.