“Protected conduct” includes all aspects of trying to oppose or remedy discrimination, such as: filing a charge of discrimination; threatening to file a charge; complaining about, opposing or protesting perceived discrimination against yourself or another employee; assisting someone else in opposing discrimination; giving evidence or testimony to an investigator; refusing to engage in conduct that the you believe to be unlawful; and refusing to assist an employer (by testimony or otherwise) in discriminating.
For example, in a case against Day & Zimmerman NPS, Inc (“DZNPS”), the court held that (1) revealing an employee’s charge of discrimination to the employee’s colleagues was an adverse employment action and that the court may look at the time frame between the filed discrimination claim and (2) employer’s alleged retaliatory action to determine that an adverse action taken against an employee was a result of a discrimination charge filed. No resulting harm in an adverse action needs to be proven. For a retaliation claim to exist, the EEOC needs to prove that the adverse action could dissuade employees from making a charge of their own or communicating with the EEOC in general. This case urges employers to be careful with what information is disclosed to their employees.
Under the Family and Medical Leave Act (FMLA), requesting or taking medical leave or protesting your employer's refusal to allow you to take leave is considered protected conduct. Even making inquiries about a certain policy or practice of the company, or about your participation in any retirement or other plan covered by the Employee Retirement Income and Security Act (ERISA), is protected conduct. Other employment statutes also have anti-retaliation clauses.