- A jury should decide whether a former Amazon assistant manager engaged in protected activity when she complained that a driver's texts made her uncomfortable, a federal district court determined Dec. 7 (Tenpenny v. Prime Now, LLC., No. 19-cv-00420 (M.D. Tenn. Dec. 7, 2020)).
- Amazon fired the complaining employee, according to the company, when she refused to cooperate with its investigation; a lack of cooperation with a company investigation is a violation of Amazon's code of conduct, it told the court. Her complaint was not protected because she said she did not believe she was being harassed and did not want to file a formal complaint, it said.
- The plaintiff, however, alleged in a lawsuit that she was fired in retaliation for her complaint and a separate issue she raised about working conditions. The trial court denied both the plaintiff's and defendant's motions for summary judgment. Noting that the plaintiff had complained on more than occasion and consistently stated that the text messages made her feel uncomfortable — and that an internal review found that the complaints should have been reported as a possible violation of Amazon's sexual harassment policy — the court said, there "is, at a minimum a question of fact regarding whether plaintiff's complaints were protected activity." A reasonable jury could conclude that her firing was retaliatory, the court said.
Workers engage in protected activity when, among other things, they complain about discrimination or harassment, request an accommodation, or participate in an investigation into alleged misconduct, according to the U.S. Equal Employment Opportunity Commission (EEOC). Most of the nation's employment laws forbid retaliation against workers who engage in protected activity.
However, not all employee activity is protected. For example, the 5th U.S. Circuit Court of Appeals recently held 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 was not protected activity. In another instance, the 8th U.S. Circuit Court of Appeals held that a Nebraska worker's complaint to company officials that a colleague was subjected to racial bias wasn't protected activity because she didn't have an "objectively reasonable basis" for believing that a Title VII violation had occurred.
Once an employer knows that a worker has engaged in protected activity — even if it appears likely the employee is incorrect — it's important that "retaliation red flags" such as increased supervision, highlighting alleged performance issues or increased work standards or expectations be avoided, experts have told HR Dive.