In our last post, we began discussing the topic of whistleblower protections. As we noted, these protections vary by statute and the scope of activity protected can vary somewhat depending on the jurisdiction.
When an employer retaliates against an employee for engaging in protected activity, one important issue that can arise is whether the activity in which the employee engaged was actually protected under the statute, and if so, under what conditions. This requires a clarification not only of the proper interpretation of the law, but also clear presentation of the facts of the case.
Under some statutes with whistleblower protections, the type of activity in which the employee engages in can make a difference as to whether or not adverse employment action based on that activity constitutes illegal retaliation. For example, the Title VII of the Civil Rights Act of 1964 protects employees’ ability to oppose illegal employment practices and to participate in investigations of illegal employment practices. The protection available to a whistleblower under Title VII depends, though, on whether he or she engaged in activity that qualifies as opposition or participation.
Activity which qualifies as opposition to illegal employment practices is slightly broader in scope and does not require the employee to have acted based on a good-faith belief they are opposing an illegal employment practice, as is required of protected opposition. Properly characterizing the activity is, therefore, important to ensure an employee is properly protected from adverse employment action.
Yet another issue is whether the adverse employment action taken by the employer actually constituted retaliation. Retaliation can take many forms, and knowing how to recognize it and how to present convincing evidence to prove it is critical. An experienced attorney can help address these and other issues, not only as they impact employees who believe they have been subjected to retaliation for engaging in protected activity, but also employers looking to defend themselves from baseless accusations of retaliation.