Preventing Workplace Harassment, Discrimination, and Retaliation

 Participating or cooperating with a federal or state enforcement agency conducting an investigation of the employer regarding an alleged unlawful activity, such as the EEOC, DFEH, or Cal/OSHA;  Testifying as a party or witness against the employer regarding an alleged unlawful activity; or  Filing an internal complaint with the employer regarding alleged unlawful activity. Further, because protected activity is generally viewed liberally, employers should treat employees as having engaged in a protected activity whenever the employer is made aware of informal, as well as formal, conduct that appears to question the legality of the employer’s conduct. Examples of protected activity include:

 Providing evidence in an internal investigation of alleged discriminatory practices;

 Serving as a witness in an EEO investigation or litigation;

 Requesting a reasonable accommodation based on religion or disability;

 Employee complaints (verbal or written) alleging unlawful activity to a supervisor;  Rumors of an employee complaining of alleged unlawful activity to outside agencies or supervisors;

 Employee involvement in disputes with a former employer; and

 Employee association with another employee engaged in protected activity.

To effectively and accurately identify protected activity in the workplace, employers should remember the following four points: 1. Protected activities are not limited to formal complaints and can take many forms. 2. A person can allege retaliation even if the person is not the target of the complained-about conduct. Employees who complain about discriminatory conduct are protected, whether or not they have been subjected to that conduct. An employee who, for example, acts as a witness in another employee’s sexual harassment lawsuit is engaging in a protected activity. 3. An employee’s allegations of employer misconduct need not be correct for the employee’s actions to constitute a protected activity.

LCW Practice Advisor

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 29