Preventing Workplace Harassment, Discrimination, and Retaliation

So long as an employee has a reasonable, good faith belief that discrimination or harassment occurred, the employee’s attempts to expose or complain about that conduct will be protected. 114 4. An employee need not explicitly use the words discrimination or harassment to engage in protected activity. An employee engages in protected activity if the employee reasonably believes that the employee’s complaint concerns discrimination or harassment. But an employee may not simply make a vague complaint about personal grievances and expect that the employer will know that the employee is opposing discriminatory conduct. 115 Any opposition to an employment action—regardless of whether the employee specifically files a grievance or complaint—may be a protected activity for purposes of a retaliation claim. As a result, employers must be able to document legitimate, non-discriminatory business reasons for employment decisions. 116

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B. A DVERSE A CTION An adverse action is one that materially affects the terms, conditions, or privileges of employment. 117 The phrase “terms, conditions, or privileges” of employment must be interpreted liberally, and with a reasonable appreciation of the realities of the workplace. 118 Adverse actions include employment actions like termination or demotion, but also those actions “reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” 119

An adverse employment action may be something less than a disciplinary action or unsatisfactory performance evaluation (e.g., criticizing an employee, soliciting negative information about an employee from others, or making threats of termination). 120 However, the action must negatively affect the employee’s compensation, workplace conditions, or status.

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The following examples identify types of conduct that courts have found constituted an adverse employment action:

 Verbal abuse, locks changed, and false accusations of incompetence; 121

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 30