Not every complaint to a manager constitutes protected activity, but some do.
If an employee complains about what she reasonably believes is discrimination—using language that should tip off her employer that she’s raising discrimination—the complaint is protected.
Punishing the employee for complaining under those circumstances may then be illegal retaliation.
Take note: An employee can win a retaliation lawsuit even if the employee’s original underlying complaint turns out to be unfounded, or there was no illegal discrimination going on. The law encourages employees to raise concerns about discrimination. Punishing them for voicing these concerns is just as illegal as discriminating against them in the first place.
Recent case: Dena Brown, who is black, worked as a call center representative for Diamond Financial Products. She had a 40-hour workweek. When Brown noticed that white employees were allowed to work just 35 hours per week, she asked that her schedule be cut back to 35 hours, too.
Her supervisor refused. Brown then spoke with her boss’s supervisor, telling him she felt “this was not equal employment opportunity and was discrimination.”
Two weeks later, Diamond fired Brown. When she asked why, she was told she was an at-will employee and “there was nothing she could do about it.”
Turns out, Brown could do something about it and she sued for retaliation. The court said the case could go forward because her informal complaint about equal employment opportunity was protected activity. (Brown v. Diamond Financial Services, No. 07-CV-10623, ED MI, 2007)
Final note: This case teaches two lessons. First, just because an employee is “at will” doesn’t mean she can be fired for raising discrimination concerns. Second, any difference in the terms and conditions of employment based on race may be discrimination.