Today we get back to basics. Our video discusses the two types of protected activity — oppositional and participatory. Our paper has a very lengthy section discussing the fact that standards for protection from retaliation often differ dramatically depending on whether the “opposition” or “participation” clause applies.
Section 704(a), the anti-retaliation provision of Title VII provides, in pertinent part:
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).
Commentators have noted that “[i]t is essential to the analysis of § 704(a) to recognize its two different clauses . . . . The distinction is significant because the levels of statutory protection differ.” Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 533 (2d ed. 1983); see also Proulx v. Citibank, 659 F. Supp. 972 (S.D.N.Y. 1987) (same); cf. Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 896 n. 4 (3d Cir. 1993) (noting that courts have distinguished between the activities protected by the two clauses of 42 U.S.C. § 2000e-3(a)). Specifically, courts have broken this provision down into two areas of protected activity: (1) oppositional activity – i.e., opposing a practice made unlawful by Title VII; and (2) participatory activity – participating in any manner in an investigation, proceeding, or hearing under Title VII.
As explained in the paper and in a series of posts, the levels of protection from retaliation vary depending on the type of employee activity.
