3d Cir. Model Jury Instr. (Civil) 5.1.7

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Last updated March 2026

Davidson Cty., Tennessee , 555 U.S. 271, 277 (2009), the Court held that the antiretaliation 56

provision’s “opposition” clause does not require the employee to initiate a complaint. The 57

provision also protects an employee who speaks out about discrimination by answering questions 58

during an employer’s internal investigation. The Court declared that there is “no reason to doubt 59

that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking 60

the discussion, and nothing in the statute requires a freakish rule protecting an employee who 61

reports discrimination on her own initiative but not one who reports the same discrimination in the 62

same words when her boss asks a question.” See also Qing Qin v. Vertex, Inc.,100 F.4th 458, 476 63

(3d Cir. 2024) (“there is no meaningful difference between Qin asking, ‘Am I not being promoted 64

because I’m Chinese?’ and Qin saying, ‘I think I am not being promoted because I’m Chinese’”); 65

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (advocating salary increases 66

for women employees, to compensate them equally with males, was protected activity). “[A] 67

plaintiff need not prove the merits of the underlying discrimination complaint , but only that ‘he 68

was acting under a good faith, reasonable belief that a violation existed.’” Aman v. Cort Furniture 69

Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (internal quotations omitted) . Cf. Kengerski v. 70

Harper, 6 F.4th 531, 536 (3d Cir. 2021) (distinguishing between a hostile-work-environment claim 71

and a retaliation claim: to prevail on the former a plaintiff needs to show that the environment was 72

actually hostile while success on the latter requires only “an objectively reasonable belief” of that 73

reality). The good-faith-and-reasonable-belief test clearly applies to actions under the “opposition” 74

clause of Section 2000e -3(a). There is some authority for the proposition that a less demanding 75

test applies to actions under the “participation” clause of Section 2000e-3(a) – i.e., the clause that 76

refers to a person who “has made a charge, testified, assisted, or participated in any manner in an 77

investigation, proceeding, or hearing under this subchapter, ” 42 U.S.C. § 2000e -3(a). Thus, in 78

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), after holding plaintiff’s conduct unprotected 79

by the opposition clause because the plaintiff could not have reasonably believed the challenged 80

employer actions to be illegal, the Supreme Court went on to consider plaintiff ’s participation 81

claim based on the same employer action. 82

Court of Appeals authority, however, is divided. After noting authorities stating that “the 83

‘participation clause ’ … offers much broader protection to Title VII employees than does the 84

‘opposition clause,’” the Court of Appeals in Slagle v. County of Clarion , 435 F.3d 262 (3d Cir. 85

2006), stated that for filing a charge to constitute protected activity, “[a]ll that is required is that 86

plaintiff allege in the charge that his or her employer violated Title VII by discriminating against 87

him or her on the basis of race, color, religion, sex, or national origin, in any manner.” Slagle, 435 88

F.3d at 266, 268. Referring to the se requirements as a “low bar,” the Slagle court required the 89

plaintiff’s complaint to be “facially valid” and allege prohibited grounds. Id. Later that same year, 90

however, a different panel of the Court of Appeals indicated that the good -faith-and-reasonable-91

decision to terminate.” The court reasoned that “[i]f subsequent conduct could prevent an

employer from following up on an earlier decision to terminate, employers would be placed in a

judicial straight-jacket not contemplated by Congress.”