Protesting Discriminatory Treatment – What Is Protected Activity?

Both federal and Kentucky state law protect an employee or individual against retaliation when they have protested, complained of and/or opposed what they reasonably and in good faith believed to be unlawful discrimination directed either at themselves or a coworker. Such statements that protest, complain and/or constitute opposition to unlawful discrimination are considered "protected activity." But in the real world it is rare for people to couch their protest in the terms of legal argument and verbiage. So what kind of statement/protest may be sufficiently specific to indicate that it is a statement in fact protesting discriminatory treatment?

The federal court of appeals that covers Kentucky, the United States Court Of Appeals for the Sixth Circuit, discussed in a recent case whether the employee's statements were sufficiently specific to constitute protected activity, the statements being as follows:

  • "I'm going to respond with counsel."
  • "I'm going to bring you up on charges before..."
  • "Bring a lawsuit against [the supervisor]"
  • "Hostile  work environment."
  • "I will have an attorney respond."
  • "I will be responding with charges."

The case is Yazdian v. ConMed Endoscopic.

This court decision, however, does not mean that such statements will always in any and every case be protected activity. Context means everything. The employee or person making the statements must be acting reasonable, which means they must have some legitimate basis for making such a statement, because such a statement out of the blue with no context would not be protected activity. These issues necessarily must be reviewed and decided on a case-by-case basis. There is no bright line.

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination and retaliation cases; contact him at 859-254-7076.