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What if an employer says he/she did not know about the protected activity

Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act prohibit retaliation against an employee for engaging in protected activity.  Protected activity involves a wide range of actions that are generally thought of as being in the public interest such as filing a complaint regarding some form of wrongdoing, whistleblowing activity or attempting to stop or refusing to engage in wrongful behavior. The THRA which largely follows the federal Title VII framework lists protected activity as when someone “made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding or hearing.” under the THRA or Title VII.

Under either Title VII or the THRA one of the elements, and often most difficult to prove

is the connection between the employer’s knowledge of the plaintiff’s protected activity

and an adverse employment decision or some other form of retaliatory harassment.

The Knowledge Requirement under Title VII and the THRA

Under both Title VII and the THRA in order to be held liable for retaliatory conduct the defendant must have knowledge of the fact the defendant engaged in protected activity. Often a defendant will try to defeat a plaintiff’s claim of retaliation by claiming that he or she did not know about the protected activity. If the defendant did not have knowledge of the protected activity any conduct on their part cannot be classified as retaliation under Title VII or the THRA.

What constitutes the required knowledge can be established between a combination of direct and circumstantial evidence. Often in these types of cases the plaintiff must piece together various shreds of evidence to establish that the defendant knew of the fact the plaintiff was engaging in protected activity. Some of the evidence used to establish knowledge include the amount of time between when the protected activity occurred and the alleged retaliation. Also, any statements by the defendant regarding the plaintiff are taken together in the larger context of evidence to construct a picture of defendant’s knowledge. In this sense it is important to understand that a jury or judge is instructed to apply common sense evaluations of knowledge in these cases.

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