Protected Activity? Think Again. What Employers Need to Know

It is widely known that employers are prohibited from retaliating against employees for engaging in “protected activity.” But what is “protected activity”? Unfortunately, the definition of “protected activity” varies widely across state and federal laws. Since there is a wide scope of conduct that could be protected from retaliation, it is often difficult for employers to ensure such illegal retaliation does not occur. The recent case from the U.S. Court of Appeals for the Eleventh Circuit highlights this complexity. See Simon v. Healthsouth of Sarasota Limited Partnership, 2022 WL 3910607 (11th Cir. Aug. 31, 2022). It is important for employers to understand what employee activity/conduct is protected under the law and to train managers so as to avoid retaliation claims.

In Simon, the Eleventh Circuit acknowledged that the same legal framework applies under the False Claims Act (FCA) and Title VII of the Civil Rights Act of 1964 (Title VII) for retaliation claims. The Eleventh Circuit explained to establish a prima facie case of retaliation under either the FCA or Title VII, employees must show that: they engaged in statutorily protected activity, an adverse employment action occurred, and the adverse action was causally related to the protected activity. However, what constitutes “statutorily protected activity” under the first step of this framework differs under the FCA and Title VII. Under Title VII, the definition is arguably much broader. An employee only needs a good faith, objectively reasonable belief that the employee’s activity is protected by Title VII to be protected conduct under the act. See Little v. United Technologies Carrier Transicold Division, 103 F.3d 956, 960 (11th Cir. 1997). Title VII’s anti-retaliation provision does not require an employee to show that the employer’s conduct actually violated Title VII. Whereas, under the FCA, the Eleventh Circuit clarified that an employee must show an objectively reasonable belief that the employer was violating the FCA (i.e., that the employer has made a false claim to the federal government). Relying on its decision in Hickman v. Spirit of Athens, Alabama, 985 F.3d 1284 (11th Cir. 2021), the Eleventh Circuit reiterated that “‘the False Claims Act requires a false claim’, including retaliation claims under the FCA, and ‘general allegations of fraud are not enough.’” The court further explained to establish a FCA retaliation claim, an employee “must provide facts showing that a reasonable person might have thought that a false claim, which cannot consist of differences of opinion among physicians, was being conveyed to the government for money.” This is a much narrower definition of “protected activity” than the one under Title VII.