This protected activity consists of:

• Opposing a practice that is unlawful under one of the employment discrimination statutes
• Filing a charge or testifying, assisting or participating in any manner in an investigation, proceeding or hearing under an anti-discrimination statute

People who claim retaliation under Title VII, the ADA, the ADEA or the EPA need not claim discrimination based on race, religion, sex, national origin, age or disability, nor must they be a qualified individual with a disability or in the age group protected by the ADEA. Retaliation is unlawful even if it occurs after the employment relationship ends. An applicant, employee or former employee can bring an ADA retaliation claim against an individual supervisor and an employer.

The Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Retaliation and Related Issues addresses retaliation under each of the statutes enforced by the EEOC, including Title VII, the ADEA, the ADA, the EPA and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance clarifies that adverse action that is taken because an employee “may engage in” protected activity is also considered retaliation.

The U.S. Supreme Court ruled that any employer action that would cause a reasonable employee to refrain from making or supporting a discrimination charge may support a retaliation claim under Title VII.1

The Supreme Court’s ruling makes it clear that juries are not required to find that retaliatory actions relate only to the terms or conditions of employment. According to the U.S. Supreme Court, common sense suggests that an employee would be discouraged from bringing discrimination charges if the employer required that they spend more time performing more arduous duties and ordered the employee on an indefinite suspension without pay, even though the suspension was rescinded and lost pay restored. A reasonable employee who faces the choice between retaining their job and paycheck and filing a discrimination complaint might well choose the former. The anti-retaliation provision in Title VII is meant to protect employees from being in that position.

Employees Protected From Retaliation

In another U.S. Supreme Court case, the Court found that Title VII covers third-party claims of retaliation brought by persons who did not themselves engage in any protected activity.2 The case arose after an employee was fired shortly after his fiancée filed a sex discrimination claim against the company where they both worked.

The Court unanimously held that if the alleged facts were true, then firing the male employee was unlawful retaliation even though his fiancée complained of unlawful conduct.

1. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)