A New York City Worker’s Recent Success in Federal Court Highlights the Breadth of What Constitutes ‘Protected Activity’ in a Retaliation Case

The law bars your employer from punishing you for engaging in certain forms of “protected activity.” Protected activity may be something formal like a written complaint to your employer’s Human Resources Department about discrimination you endured at work, but the range of things that can fall under the umbrella of “protected activity” is broader than just formal complaints. It can be something as basic as verbally complaining to your supervisor. It could even be something wholly unrelated to discrimination against you, such as answering questions or serving as a witness in a coworker’s discrimination case. Whether you were opposing discrimination or harassment that targeted you or someone else, you’re entitled to be free from negative consequences for it. If you’ve suffered punishment on the job, then that may constitute retaliation and you should discuss the matter with a knowledgeable New York City employment retaliation lawyer.

A recent retaliation case from here in New York City illustrates how broad the range of “protected activities” can be. The employee was a Planned Parenthood worker and also a Jewish woman.

While working at Planned Parenthood, the woman allegedly heard multiple discriminatory comments, including her supervisor saying that she didn’t “want an old Jewish woman running a multicultural department” and another high-ranking employee saying that “there were too many white Jewish Chief Executive Officers in positions of power, and it [was] time to get them out,” according to the lawsuit.

Additionally, the woman allegedly faced opposition in attempting to form an “Employee Resource Group” (ERG) specifically for Jewish Planned Parenthood workers. (ERGs were designed to support special subgroups of Planned Parenthood workers, such as Black workers or transgender workers.) The Vice President of Diversity, Equity, and Inclusion allegedly told the woman he didn’t want a religious ERG. Also according to the complaint, he told a coworker in September 2020 that Orthodox Jewish women were “birthing factories” and that any Jewish ERG should have as its goal educating Orthodox women about birth control.

The next month, on two occasions, the woman voiced concerns in emails to the Vice President regarding anti-Semitism and “micro-aggressions towards the Jewish folks at Planned Parenthood.” Less than five weeks later, the employer terminated the woman.

The woman sued for retaliation.

Under the law regarding retaliation, you must prove that you suffered an adverse employment action (such as a demotion, termination, suspension, etc.) as a result of your engaging in protected activity opposing an “unlawful employment practice.” In this woman’s case, that action was clear: her termination.

The key dispute revolved around whether or not she had engaged in protected activity before the employer fired her. The court concluded that the woman’s complaint met this requirement. Federal, state, and city law all recognize that “informal protests of discriminatory employment practices” such as “making complaints to management [or] protesting against discrimination by industry or by society in general” qualify as protected activities for purposes of analyzing a retaliation claim.

Specificity is a Necessity

When your case involves informal complaints as protected activities, federal law says that your complaints must be “sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII” to be protected.

This woman’s emails qualified. She emailed the Vice President on October 20 and again on October 28. In the emails, she complained about “micro-aggressions toward” Jewish workers and anti-Semitism. The fact that the woman voiced those concerns in the context of advocating for the formation of a Jewish ERG did not rob those complaints of protected activity status. The law does not require a worker to separate her protests against unlawful practices from all other issues about which she might need to advocate.

Another component to a winning retaliation case is proving that your opposition and/or protestations triggered the adverse employment action. One type of evidence that can be very important in bolstering this causation requirement is timing. If your protected activity and the subsequent adverse action occurred within a small window of time (sometimes called “close temporal proximity”), then that increases the likelihood that the protected activity caused the adverse action. In this woman’s case, the time elapsed was just one month and two days, which was close enough to qualify as a “close temporal connection.”

Standing up against discrimination at your workplace — whether it targeted you or others — shouldn’t cost you your job. If you’ve been fired or otherwise punished for speaking out or aiding a coworker who spoke up, you have the right to pursue legal action. The experienced New York employment retaliation attorneys at Phillips & Associates are here to help workers harmed by illegal retaliation and advocate zealously for their interests. To find out more, contact us online or at (866) 490-5193 to set up a free and confidential consultation today.

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