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Comparison: Opposition Clause vs Participation Clause


OPPOSITION CLAUSE
(internal complaint)
"The opposition clause, on the other hand, protects activity that occurs before the filing of a formal charge with the EEOC, such as submitting an internal complaint of discrimination to an employer, or informally complaining of discrimination to a supervisor."
PARTICIPATION CLAUSE
(external complaint)
"The statute's participation clause ‘protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC.’"



I. Legal Citations

42 USC §2000e-3 | Other Unlawful Employment Practices
"(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, 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."

II. Judicial Application

The judiciary takes the above statute to mean a prohibition against retaliation (for complaining about discrimination/harassment).

There are two main pillars of protection against retaliation.

The first is the opposition clause; which protects you when you file an internal complaint (ie, a complaint within your company/organization).
"The FCRA's "opposition clause [protects] employees who have opposed unlawful [employment practices]." Ward v. Ortho Biotech Prods., L.P., No. 6:05-cv-1500-Orl-19KRS, 2007 WL 3379850, at *6 (M.D.Fla. Nov. 14, 2007) (citing Guess v. City of Miramar, 889 So.2d 840, 847 (Fla. 4th DCA 2004)). However, opposition claims usually involve "activities such as `making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990))."
- Carter v. HMA, 989 So. 2d 1258 (Fla. 2d DCA 2008)

The second is the participation clause; which means that you filed an external complaint (ie, a complaint with a government agency (eg, EEOC, FCHR, etc.))
Cases involving retaliatory acts committed after the employee has filed a charge with the relevant administrative agency usually arise under the participation clause. E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); Croushorn v. Bd. of Trs., 518 F.Supp. 9, 21 (M.D.Tenn. 1980). Accordingly, we will consider Ms. Carter's cause of action as a participation claim rather than as an opposition claim.
- Carter v. HMA, 989 So. 2d 1258 (Fla. 2d DCA 2008)

III. Bibliography

IV. Conclusion

You should now have a better understanding for how your judge will construe the two clauses (opposition vs participation) from the federal law against employment retaliation.









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