Are employees protected against retaliation for not supporting the employer’s agenda during an internal or governmental investigation or proceeding? YES, good faith participation or opposition is protected.
The EEOC Enforcement Guidance on Retaliation and Related Issues states at part II.A.2.a:
“It is also opposition when an employee who did not initiate a complaint answers an employer’s questions about potential discrimination,”
citing at footnote 37 the Supreme Court opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009).
And, according to the EEOC’s updated guidance of September 2016, a company’s own complaint process “constitutes ‘participation’ protected activity,” noting that in Crawford the Supreme Court did not limit participation to investigations by only governmental agencies.
Furthermore, footnote 35 to the EEOC Guidance cites Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3rd Cir. 1996), for the rule that:
“[Re]fusing to fulfill the employer’s request to gather derogatory information about those who complained [is] protected opposition.”
The law recognizes the need to protect employees so they may speak without retaliation.
Kurt H. King, Missouri attorney
20 E. Franklin, Liberty, Clay County, Missouri 64068
816.781.6000
Retaliation and Employment Discrimination, Litigation, General Matters
The Law Office of Kurt H King 
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