- An employee's statement didn't lose its "protected activity" status when she said she didn't believe an incident in question amounted to sexual harassment, the 9th U.S. Circuit Court of Appeals concluded, reviving the worker's lawsuit (Archuletta, et al. v. Corrections Corp. of America, No. 19-27546 (9th Cir., Nov. 13, 2020)).
- The employee, who worked for Corrections Corporation of America at its Nevada Southern Detention Center, participated in an investigation regarding an incident in which the company's COO allegedly "grasped and fondled her hand" and made comments about her engagement ring. She acknowledged that the interaction made her "uncomfortable" but told an investigator she did not believe she was a victim of sexual harassment, according to court documents. She was later fired and sued, alleging her termination was retaliation for her participation in the investigation.
- A district court granted summary judgment to the employer, ruling that the employee had not demonstrated that she engaged in protected activity, but the appeals court disagreed. The plaintiff's description of the behavior and participation in the investigation could support a retaliation claim under Title VII because they were protected activity, the 9th Circuit said; her other statements did not strip those activities of their status, it concluded.
Most of the nation's employment laws forbid retaliation against workers who engage in what is called "legally protected activity." Notably, there’s more than one way to engage in protected activity. In general, when workers complain about discrimination or harassment, request an accommodation, participate in an investigation into alleged misconduct or testify before the U.S. Equal Employment Opportunity Commission (EEOC), they are engaging in protected activity, according to the commission.
However, not all activity undertaken by an employee after a complaint is made qualifies as protected activity. For example, the 5th U.S. Circuit Court of Appeals recently ruled that a former university president alleging misconduct to the organization that accredited the college for which he used to work, wasn’t protected activity, unlike claims made to the EEOC. The 7th Circuit similarly ruled that leaving work sick is not protected activity.
Additionally, employees are not insulated from legitimate discipline when they have clearly engaged in protected activity. While experts previously told HR Dive it can be risky to dole out discipline soon after an employed engages in protected activity, appropriate discipline also can prevent future claims of disparate treatment. HR can assist by thoroughly documenting all disciplinary actions.