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Not every complaint is protected activity

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in Discrimination and Harassment,Human Resources

Some employees seem to believe that any complaint they make about their employer is protected activity. Thus, they may assume that any punishment they experience is retaliation worthy of a lawsuit.

Fortunately, that’s not necessarily true. For example, to sue for retaliation under Title VII, the complaint has to relate to employment. As the following case shows, general complaints about an employer’s practices and policies aren’t enough if they’re not somehow related to employment.

Recent case: Kimberly McCallum was the only black employee at a Christian ministry. When working on a project to develop summer camps for children, she noticed that the only congregations invited to participate had mostly white parishioners. Majority black congregations on the same streets apparently had been excluded. McCallum complained to church management about what she viewed as segregation.

Within weeks, the ministry downsized by one employee: McCallum. Later, a white employee with fewer qualifications stepped into her old job.

McCallum sued, alleging both race discrimination and retaliation.

The court nixed her retaliation claim, reasoning that she had not engaged in protected activity when she complained about perceived racism in the church camp program. The court said McCallum’s internal complaint had nothing to do with employment. Therefore it wasn’t protected. Since she hadn’t engaged in protected activity, there was no retaliation. (McCallum v. Billy Graham Evangelistic Asso­cia­tion, No. 3:09-CV-381, WD NC, 2011)

Final note: The ministry isn’t entirely off the hook. The court said McCallum’s race discrimination claim should go to trial. She was the only black employee and was replaced by a white employee, which the court found suspicious. It also noted apparent racial bias in the workplace after hearing testimony that a white supervisor who clearly needed assistance had refused any help from McCallum.

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