29 CFR § 1977.6 - Unprotected activities distinguished.

---
identifier: "/us/cfr/t29/s1977.6"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "29 CFR § 1977.6 - Unprotected activities distinguished."
title_number: 29
title_name: "Labor"
section_number: "1977.6"
section_name: "Unprotected activities distinguished."
chapter_name: "OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR"
part_number: "1977"
part_name: "DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER THE WILLIAMS-STEIGER OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970"
positive_law: false
currency: "2026-03-24"
last_updated: "2026-03-24"
format_version: "1.1.0"
generator: "[email protected]"
authority: "29 U.S.C. 657, 660; 5 U.S.C. 553; and Secretary of Labor's Order No. 08-2020 (85 FR 58393), 9-83 (48 FR 35736), or 12-71 (36 FR 8754), as applicable."
regulatory_source: "38 FR 2681, Jan. 29, 1973, unless otherwise noted."
cfr_part: "1977"
---


# 1977.6 Unprotected activities distinguished.

(a) Actions taken by an employer, or others, which adversely affect an employee may be predicated upon nondiscriminatory grounds. The proscriptions of section 11(c) apply when the adverse action occurs because the employee has engaged in protected activities. An employee's engagement in activities protected by the Act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations. See, *NLRB* v. *Dixie Motor Coach Corp.,* 128 F. 2d 201 (5th Cir., 1942).

(b) At the same time, to establish a violation of section 11(c), the employee's engagement in protected activity need not be the sole or primary consideration behind discharge or other adverse action. If the discharge or other adverse action would not have taken place “but for” engagement in protected activity, section 11(c) has been violated. See *Bostock* v. *Clay County, Ga.,* 140 S Ct. 1731, 1739 (2020); *Univ. of Tex. Sw. Med. Ctr.* v. *Nassar,* 570 U.S. 338 (2013). Ultimately, the issue as to whether a discharge or other adverse action was because of protected activity will have to be determined on the basis of the facts in the particular case.

[38 FR 2681, Jan. 29, 1973, as amended at 86 FR 49476, Sept. 3, 2021]