An employer may not terminate or otherwise discriminate against an employee in retaliation for engaging in an otherwise protected activity—for instance, making a discrimination complaint or participating in the investigation of a discrimination complaint.

An employer may be found liable for retaliatory discharge if the employee can prove that:

• He or she engaged in a protected activity;
• The employer was aware of the protected activity; and
• The employer subjected the employee to an adverse employment action because of the protected activity (e.g., termination).

The number of retaliation claims filed with the Equal Employment Opportunity Commission (EEOC) has been climbing steadily, with retaliation claims marking the most frequently filed type of workplace discrimination claim for several years. Employers should be especially concerned about retaliation claims because they can survive even when the underlying discrimination claim is dismissed.

What employee actions are considered to be protected activities under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA)?

Retaliation and the FMLA

Under the FMLA, employers may not:

• Interfere with, restrain, or deny employees the right to exercise or attempt to exercise any rights provided by the FMLA;
• Discriminate against or discharge any individual for opposing any practice that is made unlawful by the FMLA, or;
• Discharge or otherwise discriminate against an individual for instituting proceedings, giving any information, or testifying with regard to any inquiry or proceeding related to any right provided by the FMLA.

Retaliation and the ADA

Employers are prohibited from discriminating or retaliating against any person with or without an ADA disability who has:

• Exercised his or her rights under the ADA;
• Opposed any practice forbidden by the ADA, or;
• Has made a charge, testified, or assisted in any manner in any investigation, proceeding, or hearing under the ADA.

This article is part of a series that compares and contrasts various aspects of the two laws.

Next article: Employer liability under both laws.