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Reasonableness Not Required For Participation Retaliation Claim

Published by on January 6, 2009

In Cumbie vs. General Shale Brick, Inc., the Fourth Circuit decided in an unpublished opinion dated December 8, 2008 that the reasonableness standard does not apply to participation protected activity.  A copy of the Court’s opinion is here.  More after the break. This case involved a retaliation claim brought under Title VII of the Civil […]

In Cumbie vs. General Shale Brick, Inc., the Fourth Circuit decided in an unpublished opinion dated December 8, 2008 that the reasonableness standard does not apply to participation protected activity.  A copy of the Court’s opinion is here.  More after the break.

This case involved a retaliation claim brought under Title VII of the Civil Rights Act of 1964.  Ordinarily, in order to establish a prima facie case of retaliation, a plaintiff must establish (1) that the plaintiff engaged in protected activity, (2) that an adverse employment action was taken against the plaintiff, and (3) that there was a causal link between the protective activity and the adverse employment action.  There are two different categories of protected activity:  opposition activity and participation activity.

Opposition activity includes “utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”  Participation activities include making a charge, testifying, assisting, or participating in any manner in investigation, proceeding, or hearing under Title VII.  The opposition activity prong includes a requirement that the plaintiff engaged reasonably in activities opposing discrimination.  The court pointed out, however, that participation activities are protected regardless of whether that activity is reasonable.

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