What is Protected Activity in the Workplace?

Your Voice, Your Rights: Understanding Protected Activity 

Facing unfair treatment at work can be incredibly stressful and isolating. Whether it’s subtle bias or overt workplace discrimination, the experience can leave you feeling vulnerable and unsure where to turn. Many employees fear that speaking up about wrongdoing will only make things worse, potentially costing them their job or career opportunities. This fear is precisely why laws exist to protect your right to raise concerns. This protection comes in the form of legally recognized “protected activity”—a shield that allows you to stand up for fairness without facing unlawful punishment. 

At Filippatos Law, we understand the courage it takes to confront injustice in the workplace. We are dedicated to ensuring your voice is heard and your rights are vigorously defended. This post aims to demystify protected activity, explain its vital connection to preventing and addressing workplace harassment and retaliation, and provide clear, actionable guidance on how you can assert your rights. 

The Building Blocks: Protected Classes and Workplace Discrimination 

Before diving into protected activities, it’s essential to understand the foundation of anti-discrimination law. Federal, state, and local laws protect employees from unfair treatment based on their membership in a “protected class.” These are legally recognized categories of people who have historically faced discrimination. 

Protected classes typically include race, color, religion (religious discrimination), sex (including pregnancy, childbirth conditions, sexual orientation and gender identity), national origin, age (specifically, individuals 40 and over), disability (disability discrimination), and genetics. 

Workplace discrimination occurs when an employer treats an employee or job applicant unfairly in any aspect of employment because they belong to one or more of these protected classes. This can affect hiring, firing, pay, promotions, job assignments, training, benefits, and more. The unfair treatment might be intentional, or it could result from a seemingly neutral policy that disproportionately harms members of a protected class. 

Workplace harassment is a form of unlawful discrimination. It involves unwelcome conduct based on a protected characteristic that is so severe or pervasive that it creates an intimidating, hostile, or abusive work environment, or when enduring the conduct becomes a condition of continued employment. This can include offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, or insults. A particularly pervasive and damaging form is sexual harassment, which includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Both “quid pro quo” harassment (where submission to harassment is linked to job benefits) and hostile work environment harassment are illegal. Understanding these underlying wrongs is crucial because protected activity often involves speaking out against precisely these types of illegal conduct. 

What Exactly is “Protected Activity”? Actions Shielded by Law 

So, what actions constitute legally protected activity? Generally, it involves exercising your rights under anti-discrimination and other employment laws or assisting others in doing so. It’s about opposing conduct you reasonably believe is unlawful or participating in processes designed to investigate and remedy such conduct. The scope of what counts as protected activity is intentionally broad, recognizing that employees might raise concerns in various ways, both formally and informally. 

Here are common examples of protected activity: 

Reporting Discrimination or Harassment: Filing a complaint—whether formally in writing or informally through conversation—about workplace discrimination or workplace harassment (including sexual harassment, gender discrimination, ethnic discrimination, religious discrimination, or disability discrimination). This could be reporting to your supervisor, Human Resources, or an external agency like the U.S. Equal Employment Opportunity Commission (EEOC) or the New York State Division of Human Rights (NYSDHR). 

Participating in Investigations: Cooperating with an internal or external investigation into a discrimination or harassment complaint. This includes serving as a witness in an EEO charge, investigation, or lawsuit. 

Opposing Unlawful Practices: Voicing opposition to practices you reasonably believe are discriminatory. Examples include refusing to follow orders that would result in discrimination, resisting sexual advances, intervening to protect coworkers from harassment, or complaining to management. 

Whistleblowing: Reporting activities, policies, or practices by your employer that you reasonably believe violate a law, rule, or regulation, or pose a substantial and specific danger to public health or safety. This is a critical form of protected activity. Under laws like New York Labor Law §740, whistleblowing protection can cover disclosing information to a supervisor or a public body, providing testimony, or refusing to participate in illegal activity. 

Requesting Reasonable Accommodations: Asking your employer for a necessary adjustment or change at work due to a disability or a sincerely held religious belief or practice. 

Discussing Wages: Talking to managers or coworkers about salary information to investigate or uncover potentially discriminatory pay practices. 

This broad protection exists because lawmakers recognize that without it, employees would understandably fear negative consequences for reporting illegal or unethical behavior, allowing such conduct to continue unchecked.

The Red Line: Understanding Workplace Retaliation 

While employees are protected when they engage in the activities listed above, some employers unfortunately respond negatively. Retaliation occurs when an employer takes an adverse action against an employee because that employee engaged in a legally protected activity. 

Federal and state laws, including strong protections in New York, strictly prohibit retaliation. It is illegal for an employer to punish an employee for asserting their rights. Retaliation is considered a separate and distinct violation from the underlying discrimination or harassment itself. This means an employee can have a valid retaliation claim even if the original workplace discrimination or workplace harassment complaint is ultimately not proven, provided the employee acted on a reasonable, good-faith belief that the conduct they opposed was unlawful. The fact that retaliation is the most frequently alleged basis of discrimination in the federal sector highlights how common this issue is and why protections are so vital. 

What counts as illegal retaliation? The key is whether the employer’s action is “materially adverse”—meaning it could well dissuade a reasonable worker from making or supporting a charge of discrimination. Common examples include:

• Firing, wrongful dismissal, suspension, or demotion. 

• Reducing salary, work hours, or denying benefits. 

• Giving unjustified negative performance reviews or unfavorable job references. 

• Excluding the employee from meetings, projects, or training opportunities. 

• Increasing scrutiny, surveillance, or micromanagement. 

• Engaging in verbal or physical abuse, threats, or intimidation. 

• Threatening to contact or contact immigration authorities regarding the employee or their family. 

• Making the employees’ work more difficult, such as by purposefully changing their schedule to conflict with family responsibilities. 

• Spreading false rumors or otherwise isolating the employee.

To prove retaliation, there must be a causal connection showing the employer took the adverse action because of the employee’s protected activity. This link is often established through timing (e.g., the adverse action occurs shortly after the protected activity), direct evidence (like statements from a manager), or comparative evidence (showing the complaining employee was treated worse than others who did not complain). 

Taking Action: What to Do if You Witness or Experience Workplace Violations 

Knowing your rights is the first step. Acting can feel overwhelming, but there are concrete steps you can take.

What should I do if I witness discrimination in the workplace?

Witnessing workplace discrimination or workplace harassment directed at a colleague can be deeply unsettling. Bystanders often want to help but may fear becoming targets themselves. Here’s what you can consider:

• Document What You Observed: Privately note the specifics: date, time, location, who was involved, what was said or done, and anyone else who might have seen or heard it. Detailed, contemporaneous notes are valuable. 

• Assess the Situation: Consider your workplace culture and your safety. Is there a manager or HR representative you trust? 

• Report (If Appropriate/Safe): You can report what you witnessed through official channels, following your company’s policy. This might involve speaking to HR or a supervisor. Remember, participating truthfully in an investigation is also a protected activity, shielding you from retaliation. 

• Support the Victim: If you feel comfortable, offer support to the person targeted. Simply acknowledging what happened and expressing support can make a significant difference.

Your actions as a witness can contribute to a workplace culture where discrimination is not tolerated. 

What should I do if I think my rights were violated (I experienced discrimination, harassment, or retaliation)? 

If you believe you have been subjected to workplace discrimination, workplace harassment (including sexual harassment, gender discrimination, ethnic discrimination, religious discrimination, or disability discrimination), or retaliation for engaging in protected activity, here are crucial steps to take: 

• Document Everything Meticulously: This is critical. Keep a detailed log of all incidents – dates, times, locations, what happened, who was involved, and any witnesses. Preserve all potential evidence, such as emails, text messages, performance reviews (especially before and after your protected activity), memos, and notes from conversations. 

• Review Company Policies: Consult your employee handbook or company intranet for policies on discrimination, harassment, retaliation, and the procedures for reporting violations. Follow these internal procedures if you feel safe doing so. 

• Report Internally (Consider First): Report your concerns in writing (if possible) to HR, your supervisor, or the designated contact person according to company policy. Keep a copy of your complaint. Giving your employer a chance to investigate and correct the problem is often advisable but be mindful of external filing deadlines. Request a written response detailing their findings or actions.

• File an External Complaint (If Internal Efforts Fail or Are Unsafe/Inappropriate): You have the right to file a complaint with government agencies. The availability of multiple avenues (federal, state, city) offers choices but also adds complexity, making timely action important. 

• EEOC (Federal): File a charge with the U.S. Equal Employment Opportunity Commission. Strict time limits apply – typically 180 or 300 days from the date of the unlawful action. 

• New York State Division of Human Rights (NYSDHR): Enforces the New York State Human Rights Law, which often offers broader protections than federal law. 

• New York City Commission on Human Rights (NYCCHR): If you work in NYC, this agency enforces the protective New York City Human Rights Law. 

* (Note: Federal employees follow a different process involving contacting an agency EEO counselor within 45 days.)

Consider Whistleblowing Channels: If your complaint involves illegal activity or a danger to public health/safety, specific whistleblowing laws like NY Labor Law §740 may provide distinct reporting paths and protections. These might involve reporting internally first or directly to a public body depending on the circumstances. 

Consult an Experienced Employment Lawyer: Navigating workplace disputes and legal processes can be complex and emotionally draining. An employment law attorney can provide invaluable assistance by explaining your rights, evaluating the strength of your claim, outlining your options, ensuring you meet critical deadlines, and advocating fiercely on your behalf.

Conclusion: You Are Not Alone – Your Rights, Your Voice, Your Advocates 

Federal and state laws provide robust protections for protected activity and strictly prohibit retaliation. These laws exist to ensure you can speak out against workplace discrimination, workplace harassment (including serious issues like sexual harassment, gender discrimination, ethnic discrimination, religious discrimination, and disability discrimination), and illegal conduct through whistleblowing without fearing unlawful punishment. Your voice matters and exercising your right to a fair and lawful workplace is essential.

Call Us

At Filippatos Law, we are compassionate, dedicated, and results-driven advocates for employees. If you believe you have faced unlawful discrimination, harassment, or retaliation in the workplace, or if you are considering engaging in protected activity like whistleblowing and want to understand your protections, we are here to help. We will stand by you to ensure your voice is heard and your rights are protected. If you are experiencing discrimination at work due to your sexuality or gender expression, please give us a call at 888-9-JOBLAW for a free consultation. We will do our utmost to help secure you the justice you deserve.