What Is Protected Activity Under Title VII (Part 2)

Oppositional Activity Must Be Based On A Good-Faith, Reasonable Belief, And The Activity Itself Must Be Reasonable, Or Else It Loses Its Protection

There Is A Good-Faith Reasonable Belief Requirement For Oppositional Activity To Be Protected.

As an initial matter, to be protected as oppositional activity, the plaintiff must show that he or she took some step in opposition to a form of discrimination that the statute prohibits – for example, made an internal complaint. The plaintiff need not show that the practice he or she opposed was in fact a violation of the statute; he or she may be mistaken in that regard and still claim the protection of the statute. See, e.g., Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 441 (7th Cir. 2010) (citing Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002)). However, his or her opposition must be based on a good-faith and reasonable belief that he or she is opposing unlawful conduct. See, e.g., Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 747 (7th Cir. 2010), cert. denied, 131 S. Ct. 1603 (2011). If the plaintiff does not honestly believe he or she is opposing a practice prohibited by the statute, id. at 747–48, or if his or her belief is objectively unreasonable, Lang v. Nw. Univ., 472 F.3d 493, 495 (7th Cir. 2006), then his or her opposition is not protected by the statute. See also Byers v. The Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (plaintiff’s belief of racial discrimination was objectively unreasonable; thus, his internal complaints of same were not protected from retaliation). To show that he or she opposed an unlawful employment practice, a plaintiff must demonstrate that he or she had a “reasonable belief that the employer was engaged in unlawful employment practices.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007).

In addition, to be protected as oppositional activity, the employee’s underlying complaint must be one that, if true, a reasonable person would believe to be prohibited by Title VII. Thus, if the employee’s complaint is not based on any factor protected from discrimination by law, it is not protected oppositional activity. See, e.g., Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir. 2012) (“General complaints, such as Smith’s, do not constitute protected activity under the ADEA because they do not include objections to discrimination based on her age.”) (citation omitted); Richards v. JRK Property Holdings, No. 10-101252010, WL 5186675, at *2 (5th Cir. Dec. 20, 2010) (plaintiff who asserted that she was terminated for refusing to falsify documents did not state a viable Title VII retaliation claim); Helton v. Southland Racing Corp., 600 F.3d 954, 961 (8th Cir. 2010) (“Because [plaintiff] acknowledged that she said nothing in that call about race discrimination, her conversation was not protected conduct under Title VII, and so any action taken in response to that conversation cannot be actionable under Title VII.”); Richard v. Cingular Wireless L.L.C., 233 Fed. Appx. 334, 338 (5th Cir. 2007) (affirming summary judgment because plaintiff’s complaint of general mistreatment was not protected from retaliation); Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913, 916 (5th Cir. 2006) (generalized complaints of mistreatment not protected); Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006) (“Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient.”) (citing Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997)).

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