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Is the Scope of Protected ‘Opposition’ Shrinking?

Lexology (05/01/12) Theodore A. Olsen

Employees are protected from retaliation when opposing illegal discrimination or participating in a proceeding that claims discrimination under Section 704 of Title VII and other employment discrimination laws, but the courts have long ruled that they are not protected when complaining about working conditions not associated with prohibited discrimination. However, there have been several surprising decisions in “opposition” cases recently. In Brush v. Sears Holdings Corp., for instance, the plaintiff claimed she was terminated after investigating an employee’s sexual harassment claim because she complained that the company was not sufficiently addressing sexual assaults of female workers, but the court ruled that her complaints did not constitute “protected opposition.” According to the court, complaints about internal grievance processes and challenges to these grievance systems are not protected opposition under Title VII, because employers are not legally required to have such processes and the absence or inadequacy of such systems does not violate the law.