Q & A Session: Adverse Action v. Protected Activity Time Period



I have a question regarding the adverse action v. protected activity time period. Is the protected activity only the filing of the formal EEO complaint or can it be activities after, such as mediation, prehearing, etc.? 


I assume that you are referring to the inference of retaliation than can be created by the issuance of an adverse employment action (e.g. a proposed removal action or bad performance appraisal) to an employee shortly after that employee engaged in protected EEO activity.

While the EEOC has not identified many discrete “protected activities,” the federal courts have acknowledged “protected activity” to encompass actions by the complaining employee in pursuit of his or her complaint. Examples of such acknowledged “protected activity” by the federal courts include the filing of the EEO complaint, execution of a settlement agreement to resolve the EEO complaint, and even sending letters attempting to administratively appeal closure of an EEO complaint within a government agency.

I note that even though an activity may be considered protected, the EEOC will require the time period between the agency’s initial knowledge of the prior protected activity and the adverse employment action to be “very close” to establish a prima facie case of reprisal, unless there is other evidence to support the inference that the action was taken in retaliation for the prior protected activity.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

Leave A Reply