Nearly every employment law on the books contains a provision protecting employees from retaliatory acts. These provisions protect employees who complain to their employer about what they reasonably perceive to be an unlawful act, or who file a claim against their employer alleging a violation of the law. If an employee engages in such a “protected activity,” the employer cannot take an adverse job action in retaliation for the protected act.
In recent years, the courts have steadily increased the scope of protection for employees under the various laws protecting individuals from retaliation. The trend began with a trilogy of Supreme Court decisions. In the first, Crawford v. Metropolitan Government of Nashville , 555 U.S. 271 (2009), the plaintiff was interviewed by her employer during an investigation of a sexual harassment claim made by another employee. When she was terminated weeks later, she alleged that information she provided to the employer, corroborating her coworker’s sexual harassment claim, led to her termination. The lower courts held that the plaintiff had not engaged in a protected activity she did not raise the objection, nor did she file a claim.
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