Areas of Practice

Retaliation for Engaging in Protected Activity

Under both Ohio and federal law it is unlawful for an employer to retaliate against an employee who has engaged in a protected activity.

What is a “protected activity?”

Generally, there are two types of protected activity. The first type of protected activity is when an employee opposes an unlawful employment practice, which is referred to as the “opposition clause”. Even if the employment practice is later deemed legal, an employee may still have a retaliation claim. However, in order to be protected, the opposition must be reasonable. Opposition protected activity occurs when an employee complains to management, other employees, or newspapers about discriminatory conduct. The second type of protected activity is known as participation. An employee’s conduct falls under the “participation clause” protected activity when that employee files a charge, testifies, assists, or otherwise participates in a proceeding, investigation or hearing conducted by the Equal Employment Opportunity Commission (EEOC) or the Ohio Civil Rights Commission (OCRC) or when an action has been commenced under certain Federal or Ohio anti-discrimination laws.

The purpose for the anti-retaliation statutes is to protect an employee’s employment so that employees do not feel intimidated as a result of filing charges against their employers. For that reason, courts have extended this protection to employees even if the charge is found to have no merit.

To establish a claim for retaliation, a person is required to demonstrate the elements as follows:

1. that you were engaged in a protected activity;
2. that your employer knew that you were engaged in that protected activity;
3. that as a result of engaging in that protected activity, your employer took adverse action against you; and
4. that there is a causal connection between the protected activity and the adverse employment action.

If your employer offers a legitimate, non discriminatory reason for the adverse employment action, you will be required to demonstrate that that reason is pre-textual and the real reason for the adverse action was your protected activity.

Timing

There are more than 40 federal and state anti-retaliation laws that pertain to protected activity. Some require that you first file an administrative charge with the EEOC or OCRC within 180 days of the alleged adverse action. Others allow you to directly file a civil action without filing an administrative claim.

It is important that you speak with an attorney knowledgeable on employment law as soon as possible, who can advise you of your rights. You may contact us by completing a confidential case analysis form or by calling us directly at (330) 258-8000.

789 West Market Street | Akron, Ohio 44303 | Phone 330.258.8000 | Fax 330.253.8095
© Copyright 2007 Linnen Co., L.P.A. | Legal Disclaimer