Employees do not need to use legal buzzwords to be protected from retaliation. But they do need to complain about the right thing.
General workplace grievances are not the same as opposing unlawful discrimination, and courts continue to enforce that distinction.
TL;DR: An employee’s internal grievance about unfair treatment and shifting management expectations was not protected activity under Title VII of the Civil Rights Act of 1964 (Title VII) because it did not allege discrimination. Without protected activity, a retaliation claim fails before causation is even considered.
The grievance and what came next
The employee worked for the Federal Aviation Administration as an Airway Transportation System Specialist. In December 2014, he filed an internal grievance against his supervisor.
The grievance complained about management style, not discrimination. Specifically, it alleged that the supervisor:
- held him responsible for work assigned to other employees, and
- created hostility and confusion by routinely changing expectations and directions.
The grievance framed the dispute as unfair treatment and poor management. It did not allege discrimination based on race, age, or any other protected characteristic.
Several months later, the employee failed to complete required on-the-job training by a supervisor-imposed deadline. The supervisor had extended the deadline and repeatedly reminded him to complete the training. When the employee claimed he had finished the training, the supervisor confirmed that he had not.
After consulting management and human resources, the FAA suspended the employee for two weeks.
Why the retaliation claim failed
The employee argued that the suspension was retaliation for his earlier grievance. The court rejected that argument at the threshold.
To pursue a retaliation claim under Title VII, an employee must first show that he engaged in statutorily protected activity, meaning that he complained about conduct he reasonably believed was unlawful discrimination.
This grievance did not do that.
It challenged accountability, workload, and shifting expectations. It did not oppose discrimination or identify any protected characteristic. Complaints about unfair treatment, standing alone, are not protected activity under Title VII.
Because the employee never engaged in protected activity, the retaliation claim failed at step one. The court did not need to analyze causation or pretext.
Takeaways for HR
- Take every complaint seriously, regardless of how it is framed. Complaints about unfairness, workload, or management decisions still warrant attention, investigation, and follow-up, even if they do not expressly allege discrimination.
- Document what the employee actually says. Accurate, contemporaneous documentation of the substance of a complaint matters. Retaliation analysis later will turn on what was communicated, not what was inferred.
- Escalate when discrimination is alleged or reasonably implicated. If a complaint references protected characteristics or suggests bias, treat it as a potential discrimination issue and follow established escalation protocols.
- Train managers on how to route complaints. Managers should know to elevate concerns to HR, avoid dismissive responses, and refrain from characterizing complaints in ways that could create risk.
- Remember that legal analysis comes later. Courts may ultimately determine whether a complaint qualifies as protected activity, but employers reduce risk by responding consistently and thoughtfully to all employee concerns.
Bottom line
Complaining that something is unfair is not the same as opposing unlawful discrimination.
Without protected activity, a retaliation claim never gets off the ground.