10.8 CIVIL RIGHTS—TITLE VII—RETALIATION—ELEMENTS AND BURDEN OF PROOF
The plaintiff seeks damages against the defendant for retaliation. The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the plaintiff engaged in or was engaging in an activity protected under federal law, that is [activity];
2. the employer subjected the plaintiff to an adverse employment action, that is [adverse employment action]; and
3. the plaintiff was subjected to the adverse employment action because of [[his] [her]] [participation in protected activity].
A plaintiff is "subjected to an adverse employment action" because of [[his] [her]] [participation in protected activity] if the adverse employment action would not have occurred but for that participation.
If you find that the plaintiff has proved all three of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
Title VII makes it an unlawful employment practice for a person covered by the Act to discriminate against an individual "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
For a definition of "adverse employment action" in the context of retaliation, see Instruction 10.10 (Civil Rights—Title VII—"Adverse Employment Action" in Retaliation Cases).
In order to be a protected activity, the plaintiff’s opposition must have been directed toward a discriminatory act by an employer or an agent of an employer. See Silver v. KCA, Inc., 586 F.2d 138, 140-42 (9th Cir.1978) (holding that employee’s opposition to a racially discriminatory act of a co-employee cannot be the basis for a retaliation action); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013-14 (9th Cir.1983) (holding that employee’s objections to discriminatory practices by the warehouse personnel manager, on facts presented, constituted objections to discriminatory actions of the employer).
Only reasonable opposition to the employment practice is protected by Title VII. See, e.g., Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354-56 (9th Cir.1984); Crown Zellerbach, 720 F.2d at 1015.
Informal as well as formal complaints or demands are protected activities under Title VII. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir.2000).
Regarding the third element, "a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (rejecting motivating factor test in retaliation claim).