Employee opposition to harassment can be basis for retaliation claim

Many of us have heard “ignorance of the law is no excuse.” The axiom suggests people can’t avoid a law’s consequences (particularly for criminal violations) because they’re unaware of its requirements. So, you may be wondering whether the axiom translates to employment law. As most of you know, federal law prohibits retaliation against an employee who opposes conduct or practices that are unlawful under the federal antidiscrimination laws. This begs the question: Is it illegal to retaliate against employees for opposing conduct they mistakenly believed was illegal under the antidiscrimination laws? Read on to find out how the U.S. 10th Circuit Court of Appeals (which covers Utah employers) recently resolved the question.

Prohibited retaliation

First, a refresher on Title VII of the Civil Rights Act of 1964 will help you to understand the 10th Circuit’s ruling. Title VII broadly prohibits retaliation against employees for opposing discrimination. It’s generally understood to mean an employer can’t take adverse action against an employee for opposing discrimination based on race, color, sex, religion, national origin, or age, among other things.

Title VII’s antiretaliation provision is a little more specific and nuanced, however, than most employers and employees appreciate. The statute actually bans retaliation against an individual who has “opposed any practice made an unlawful employment practice” by Title VII. Stated differently, employers can’t retaliate against employees opposing unlawful discrimination. The frequently overlooked factor is that the conduct must be unlawful under Title VII.