1. Definition
While Title VII and the ADEA prohibit retaliation based on opposition to a practice made unlawful by those statutes, the ADA prohibits retaliation based on opposition to "any act or practice made unlawful by this chapter." The referenced chapter prohibits not only disability-based employment discrimination, but also disability discrimination in state and local government services, public accommodations, commercial facilities, and telecommunications. Thus, the ADA prohibits retaliation for opposing not just allegedly discriminatory employment practices but also practices made unlawful by the other titles of the statute.
2. Examples of Opposition
Threatening to file a complaint with the Commission, a state fair employment practices agency, union, court, or any other entity that receives complaints relating to discrimination is a form of opposition.
Example - CP tells her manager that if he fails to raise her salary to that of a male coworker who performs the same job, she will file a lawsuit under either the federal Equal Pay Act or under her state's parallel law. This statement constitutes "opposition."* Complaining to anyone about alleged discrimination against oneself or others
A complaint or protest about alleged employment discrimination to a manager, union official, co-worker, company EEO official, attorney, newspaper reporter, Congressperson, or anyone else constitutes opposition, picketing or engaging in a production slow-down. Furthermore, a complaint on behalf of another, or by an employee's representative, rather than by the employee herself, Opposition may be nonverbal, such as constitutes protected opposition by both the person who makes the complaint and the person on behalf of whom the complaint is made.
A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.13 Because individuals often may not know the specific requirements of the anti-discrimination laws enforced by the EEOC, they may make broad or ambiguous complaints of unfair treatment. Such a protest is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.
Example 1 - CP calls the President of R's parent company to protest religious discrimination by R. CP's protest constitutes "opposition."* Refusing to obey an order because of a reasonable belief that it is discriminatory
Example 2 - CP complains to co-workers about harassment of a disabled employee by a supervisor. This complaint constitutes "opposition."
Example 3 - CP complains to her foreman about graffiti in her workplace that is derogatory toward women. Although CP does not specify that she believes the graffiti creates a hostile work environment based on sex, her complaint reasonably would have been interpreted by the foreman as opposition to sex discrimination, due to the sex-based content of the graffiti. Her complaint therefore constitutes "opposition."
Example 4 - CP (African-American) requests a wage increase from R, arguing that he deserves to get paid a higher salary. He does not state or suggest a belief that he is being subjected to wage discrimination based on race. There also is no basis to conclude that R would reasonably have interpreted his complaint as opposition to race discrimination because the challenged unfairness could have been based on any of several reasons. CP's protest therefore does not constitute protected "opposition."
Refusal to obey an order constitutes protected opposition if the individual reasonably believes that the order requires him or her to carry out unlawful employment discrimination.
Example - CP works for an employment agency. His manager instructs him not to refer any African-Americans to a particular client, based on the client's request. CP refuses to obey the order and refers an African-American applicant to that client. CP's action constitutes "opposition."Refusal to obey an order also constitutes protected opposition if the individual reasonably believes that the order makes discrimination a term or condition of employment. For example, in one case a court recognized that a correction officer's refusal to cooperate with the defendant' s practice of allowing white but not black inmates to shower after work shifts constituted protected opposition. Even if the inmates were not "employees," the plaintiff could show that his enforcement of the policy made race discrimination a term or condition of his employment. Thus, his refusal to obey the order constituted opposition to an unlawful employment practice.14
* Requesting reasonable accommodation or religious accommodation
A request for reasonable accommodation of a disability constitutes protected activity under Section 503 of the ADA. Although a person making such a request might not literally "oppose" discrimination or "participate" in the administrative or judicial complaint process, s/he is protected against retaliation for making the request. As one court stated,
It would seem anomalous... to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.15By the same rationale, persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.
3. Standards Governing Application of the Opposition Clause
a. Manner of Opposition Must Be Reasonable
Public criticism of alleged discrimination may be a reasonable form of opposition. Courts have protected an employee's right to inform an employer's customers about the employer's alleged discrimination, as well as the right to engage in peaceful picketing to oppose allegedly discriminatory employment practices.16
On the other hand, courts have found that the following activities were not reasonable and thus not protected:
making an overwhelming number of complaints based on unsupported allegations and bypassing the chain of command in bringing the complaints18; and
badgering a subordinate employee to give a witness statement in support of an EEOC charge and attempting to coerce her to change her statement.19
If an employee's protests against allegedly discriminatory employment practices interfere with job performance to the extent that they render him or her ineffective in the job, the retaliation provisions do not immunize the worker from appropriate discipline or discharge.20 Opposition to perceived discrimination does not serve as license for the employee to neglect job duties.
b. Opposition Need Only Be Based on Reasonable and Good Faith Belief
Example 2 - Same as above, except the job sought by CP was in accounting and required a CPA license, which CP lacked and the selectee had. CP knew that it was necessary to have a CPA license to perform this job. CP has not engaged in protected opposition because she did not have a reasonable and good faith belief that she was rejected because of sex discrimination.
c. Person Claiming Retaliation Need Not Be the Person Who Engaged in Opposition
See Section 8-II C.3 for discussion of similar principle under "participation" clause.
