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​EEOC Issues Updated Retaliation Enforcement Guidance

October 10, 2016

By J. Chris Duckworth

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Retaliation and Related Issues explaining the standards the agency uses to decide if an employee has suffered unlawful retaliation in the workplace.  Along with the guidance, the EEOC published a new Q&A document and Small Business Fact Sheet on retaliation.  The guidance confirms what many HR professionals have known for some time:  there is a low bar for employees to bring a retaliation claim and a high bar for employers to defend against retaliation claims.

            Background

The EEOC is the federal agency charged with enforcing several federal civil rights laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Equal Pay Act, among others (“EEO Laws”).  As an enforcement agency, the EEOC has the authority to bring administrative proceedings and civil lawsuits against employers on behalf of complaining employees.  In civil cases, the EEOC can request preliminary relief from a court such as stopping a retaliatory transfer from taking place.  The agency can also seek compensatory damages like lost pay and punitive damages against private employers.

The last time the EEOC issued guidance on retaliation was in 1998.  Since then, retaliation claims have skyrocketed from 24% to 44.5% of all claims filed with the EEOC, making them the most common type of claim now filed with the agency.   

            Retaliation According to the EEOC

The guidance explains the three components necessary to bring a retaliation claim.  They are:

(1)  A protected activity by the employee, meaning the employee either:
(a) Participated in a protected process, or
(b) Opposed a discriminatory practice;
(2) Adverse action by the employer; and
(3) A causal connection between the protected activity and the adverse action.

 
Under the “participation” component, employees are protected from retaliation if they file a charge with the EEOC or participate in an investigation or proceeding brought under an EEO Law.  This definition of participation is broad and protects a participating employee regardless of whether the employee has a reasonable, good faith belief that unlawful conduct actually occurred.  The EEOC’s position is that in certain circumstances, filing an internal complaint with the employer or participating in an internal investigation is sufficient to be protected under the participation clause, in contrast to some court interpretations which require employees file or participate in a civil lawsuit or administrative proceeding. 
 
Under the “opposition” clause, employees are protected from retaliation if they oppose any practice made illegal under EEO Laws.  The EEOC’s definition of opposition is extremely broad, protecting any good faith resistance to a perceived violation of an EEO Law, even if the conduct is ultimately found lawful.  The opposition clause protects employees who make ambiguous complaints, complain to people or agencies other than the employer, publicly complain, or give notice of intent to complain or file a charge.  Unlike the participation component, the opposition clause requires the employee to have a reasonable good faith belief that a violation of the law occurred.  The guidance provides specific examples of protected activity under the opposition clause, including asking for a reasonable accommodation, telling a manager of an intent to file a charge about pay disparity between men and women, telling an office manager that a supervisor failed to promote a female when a less qualified man was selected, corroborating a co‑worker’s report of sexual harassment, and refusing to obey an instruction to not refer African Americans to a client. 
  
Adverse action means any employer action against an employee who has engaged in protected activity that might discourage a reasonable person from engaging in protected activity.  The EEOC’s analysis is driven by the particular facts of each circumstance.  Adverse action can include refusal to hire, denial of benefits, demotion, suspension, discharge, work-related threats, warnings, reprimands, transfers, and negative evaluations. 
 
The third and final component to prove retaliation is a causal connection between the adverse action and the protected activity.  The EEOC generally applies a “but for” test for causation, meaning if the employee had not engaged in the protected activity, the employer would not have taken the adverse action.  This standard does not require the protected activity to be the only cause of the action; instead, the standard is met if the protected activity is one of the “but for” causes for the employer’s action.  Certain obvious circumstances will prove causation, like “smoking gun” documents showing intentional retaliation, while other less-obvious facts can create an inference that supports a causation finding, like the timing between the protected activity and the adverse action.   The guidance explains that employers may defend against a causation finding by providing evidence that the decision-maker was not aware of the protected activity, that the employer had a legitimate unrelated reason to take the action against the employee such as poor performance or misconduct, that the adverse action would have occurred despite the protected conduct, or that similarly situated people were treated the same way (all provided the employer’s reason is not pretextual). 
 
      Employer Best Practices

The guidance also gives recommended best practices to avoid retaliation claims, suggesting employers: 
 
  • Maintain an anti-retaliation policy that defines retaliation and gives specific examples of retaliation; 
  • Train managers and employees on the anti-retaliation policy;
  • Maintain an open-door policy where employees can report perceived retaliation;
  • Clarify that retaliation will be subject to discipline, up to and including termination;
  • Train managers on real-world examples of protected activity; and
  • Require decision-makers to justify their reasons for taking adverse actions and contemporaneously document the decision.   

In light of the new guidance and best practices, employers will often find themselves in the difficult position of deciding how to address situations where an employee has engaged in protected activity and then more recently engaged in misconduct or displayed poor performance.  In such a circumstance, employers may be able to mitigate the risks of a retaliation claim when proceeding with corrective action by preemptively and contemporaneously documenting employees’ performance issues to show that the corrective action was justified.  Employers should also consider having a manager who does not know about the protected activity investigate the misconduct and provide recommended corrective action to the ultimate decision-maker as a way of breaking the causal connection between the protected activity and the adverse action.  
 
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