When Is Opposition to Discrimination Not Protected Conduct? Wednesday, April 7, 2021 An employer unlawfully retaliates against an employee when it takes an adverse action against her because she engaged in protected conduct. Under the anti-discrimination laws, an adverse action is anything that would tend to deter people from complaining about illegal conduct, such as putting an employee on a performance improvement plan, transferring her to a job she finds less desirable, or firing her. Establishing that an employee engaged in protected conduct is often quite straightforward, but there are some common pitfalls and gray areas in the law, where the way an employee expresses her objections to conduct she thinks is illegal, or the measures she takes to oppose it, may forfeit the protection of the anti-retaliation provisions.