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What is “Illegal” Retaliation Under Title VII?

April 26, 2013

The video we released today addresses a basic employment law question, but one that pops up all the time; namely, “What is illegal retaliation?

Title VII reads: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).

The key here is that the employee has to be opposing conduct made unlawful by Title VII or participating in an activity protected by Title VII.

With respect to the oppositional clause, 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).

More information can be found in our paper.

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