Without this key element, you can kiss that retaliation claim goodbye


A plaintiff asserting a retaliation claim against his employer must establish three elements:

  1. A protected activity (such as complaining about discrimination),
  2. A materially adverse employment action (such as a termination of employment), and
  3. A connection between the first and second element (i.e., an employer fired him for complaining about discrimination)

That third element will be missing when an employer does not know that an employee has complained about discrimination, which appears to be what happened in this recent federal court decision involving a plaintiff who believed that the defendant’s COVID safety protocols discriminated against minorities.

The plaintiff alleged that he raised COVID-19 grievances with company officials. Specifically, he spoke with management about its quarantine policy following close contact with co-workers who have COVID-19. He talked with management again about health and safety issues. The plaintiff even attended a public demonstration in the parking lot in which employees demanded a cleaner workplace.

But what does any of this have to do with race? Nothing.

The plaintiff may have believed that the defendant’s COVID-19 safety practices were discriminatory against minorities in some way. However, the plaintiff failed to allege in his complaint that he told the company or otherwise stated publicly that the company’s COVID-19 policies were racially biased.

Perhaps, the plaintiff may have a whistleblower claim if a law protects him from speaking out about workplace safety. But, unless he explicitly ties those complaints to race or some other protected class, he will have no related retaliation claim.

Case dismissed.


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