Posted May 13th, 2021.
By Saba Bireda, Kate Mueting and Carolin Guentert
In recent years, many in our nation have had their eyes opened to institutional discrimination. Movements such as Black Lives Matter, Stop Asian American Pacific Islander Hate and #MeToo have forced us all to confront the effects of institutional racism and sexism.
These movements have emphasized that addressing single instances of discrimination is insufficient when we fail to address the broader institutional discrimination.
Employees are increasingly seeking to raise awareness of institutional discrimination within their own workplaces and employers should be aware of the legal protections that may apply when employees engage in these efforts.
Recent court filings suggest that more employees are raising claims of retaliation after challenging institutional discrimination, sometimes in addition to claims of associational discrimination such as perceived association with the Black Lives Matter movement.
Anti-retaliation laws provide broad protections for employees, and these protections extend to those who do the necessary work of speaking out against institutional discrimination. For example, the city employee who raises concerns about the lack of racial diversity in agency leadership; the director who regularly advocates for minority employees in meetings with supervisors; and the university vice president who points out that the school is failing to hire and promote Black employees.
Title VII of the Civil Rights Act, which prohibits discrimination on the basis of an employee’s race, color, religion, sex or national origin, also prohibits retaliation for opposing discrimination.
While defining opposition to discrimination has been heavily litigated, the U.S. Supreme Court has made clear that opposition is defined broadly: When an employee “communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”
Anti-retaliation laws are interpreted broadly in several ways. A formal complaint is not required, and there are no magic words an employee needs to use to report discrimination. Employees who complain about discriminatory conduct need not articulate specifically how the conduct violates the law.
Employees are even protected from retaliation for complaining about conduct that is ultimately determined not to constitute unlawful discrimination, as long as they have a reasonable belief that it is. Importantly, employees who raise concerns about discrimination against other employees are protected, because anti-retaliation laws protect those who “attempt to vindicate the rights of minorities.”
These broad anti-retaliation protections recognize that the enforcement of anti-discrimination laws depends on employees raising concerns and that already-marginalized employees are likely reluctant to do so. The opposition clause permits — and, we would argue, encourages — employees to stand up for co-workers being mistreated.
We also argue that these same protections prohibit retaliation against those who speak out against institutional discrimination. This protection is especially important for employees who engage in efforts to increase diversity, inclusion and equity and who speak out when the company’s practices or environment hinder these efforts.
Courts have frequently confronted this issue when employees experience retaliation after advocating for diversity in hiring. For example, in Johnson v. University of Cincinnati, the U.S. Court of Appeals for the Sixth Circuit in 2000 reversed summary judgment on a university vice president’s claims that he was fired when he complained that the “the apparent underutilization of minorities and women” indicated the employer’s lack of commitment to hiring a diverse set of candidates.
The Johnson court noted that the plaintiff’s complaints demonstrated that he opposed his employer’s “discriminatory hiring conduct as a whole.” This language suggests that an employee raising concerns about a company’s lack of racial or gender diversity in hiring — or other employment practices like promotion or work assignments — as a whole would be sufficient to draw protection under Title VII.
Courts have even found protected activity where employees voiced general concerns about discrimination without specifying any one practice or incident. For example, where, in a case from 1983, employees at Crown Zellerbach Corp. raised complaints in a letter to a customer of their employer that “racism and discrimination were prevalent” at the workplace; and where, in a case from 1993, a Southeastern Pennsylvania Transportation Authority employee complained to a congressman regarding his supervisor’s unspecified harassment of Black employees.
Employers should recognize the protections Title VII offers to employees who reasonably oppose institutional discrimination and ensure that anti-discrimination and anti-retaliation training for management clearly explains the concept of protected opposition.
Employers can get in front of complaints by providing employees avenues to raise and discuss their concerns about institutional discrimination without fear of retaliation. Instead of viewing employee concerns as a problem, employers should embrace the opportunity to work with employees to address and improve policies and practices regarding diversity, equity and inclusion.
Our hope is that more employees feel empowered to bring the ongoing national conversations regarding institutional racism and sexism to their workplaces and that our nation’s anti-retaliation laws protect and encourage them to do so.
Saba Bireda and Kate Mueting are partners, and Carolin Guentert is senior litigation counsel, at Sanford Heisler Sharp LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 See, e.g., Complaint, Booker v. Morgan Stanley & Co. LLC, et al,No. 1:20-cv-02662 (E.D.N.Y. June 16, 2020), ECF No. 1., Complaint, Chandler v. Honeywell Int’l, Inc., No. L-002735-18 (N.J. Super. Ct. Law Div. Apr. 17, 2018), ECF No. 1; Satre v. Trader Joe’s Company et al, No. 21-cv-07911 (Or. Cir. Ct. Mar. 3, 2021), Dkt. No. 2.
 See, e.g., Frith et al. v. Whole Foods Market, Inc., No. 1:20-cv-11358 (D. Mass. July 20, 2020), ECF. No. 1.
 42 U.S.C. § 2000e–3(a).
 Crawford v. Metro. Gov’t of Nashville & Davidson Cty. , Tenn., 555 U.S. 271, 276 (2009) (citation and emphasis omitted).
 Sias v. City Demonstration Agency ,588 F.2d 692, 695 (9th Cir. 1978).
 Brown v. UPS , 406 F. App’x 837, 840 (5th Cir. 2010).
 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Retaliation and Related Issues (2016), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues#_ftnref90; Yanowitz v. L’Oreal USA, Inc. , 116 P.3d 1123, 1134 (Cal. 2005).
 Equal Emp. Opportunity Comm’n v. Crown Zellerbach Corp. ,720 F.2d 1008, 1013 (9th Cir. 1983) (citation omitted); Sumner v. U.S. Postal Serv. , 899 F.2d 203, 209 (2d Cir. 1990).
 Littlejohn v. City of New York , 795 F.3d 297, 317-18 (2d Cir. 2015); see also Ray v. Henderson , 217 F.3d 1234 (9th Cir. 2000); Thomas v. City of Beaverton , 379 F.3d 802 (9th Cir. 2004); Collazo v. Bristol-Myers Squibb Mfg., Inc. , 617 F.3d 39 (1st Cir. 2010); Brown v. Magnolia Manor, Inc. , No. 4:13-CV-110 CDL, 2014 WL 7215191 (M.D. Ga. Dec. 17, 2014).
 Bennett v. Riceland Foods, Inc. , 721 F.3d 546, 551 (8th Cir. 2013).
 See, e.g., Harris v. D.C. Water & Sewer Auth. , 791 F.3d 65 (D.C. Cir. 2015) (overturning summary judgment ruling against an employee who alleged he was fired for complaining about his employer’s pattern of terminating Black employees and replacing them with white employees; he had written letters to the Mayor and the District of Columbia City Council complaining of the discriminatory hiring practices); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010) (overturning summary judgment ruling against a male supervisor who reported sexual harassment his female report was experiencing and accompanied her to her meeting with HR); DeMasters v. Carilion Clinic , 796 F.3d 409, 413 (4th Cir. 2015) (overturning summary judgment ruling against a male supervisor who was fired for “failing to take the ‘pro-employer side'” by reporting the harassment a co-worker was experiencing and critiquing the company’s investigation thereof).
 215 F.3d 561 (6th Cir. 2000). See also Sias, 588 F.2d at 695 (9th Cir. 1978) (affirming district court decision that plaintiff’s discharge was retaliatory because he had advocated for diversity and inclusion in hiring practices) and Payne v. McLemore’s Wholesale & Retail Stores , 654 F.2d 1130, 1141 (5th Cir. 1981) (protected opposition found where employee participated in boycott of employer for its refusal to hire Black employees).
 See Crown Zellerbach Corp., 720 F.2d at 1012-13.
 See Robinson v. Se. Pennsylvania Transp. Auth. , Red Arrow Div., 982 F.2d 892, 896 (3d Cir. 1993).