EEOC Releases Guidance with Expansive View of Retaliation

Employers often struggle with how to address problems with an employee who has underperformed or engaged in misconduct but who has filed a complaint alleging harassment or discrimination. Employers that discipline or dismiss an employee after receiving a complaint may be setting themselves up for a retaliation claim, even when discipline would be appropriate if no complaint existed. On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued a long-awaited update to its position on retaliation, the Enforcement Guidance on Retaliation and Related Issues. The EEOC’s guidance takes an expansive view of retaliation, which may differ from an employer’s current understanding. Allegations of retaliation account for roughly 45 percent of all charges received by the EEOC, making retaliation the most frequently alleged basis for discrimination. In light of the EEOC guidance, employers can expect retaliation claims to increase. Employers should take steps now to ensure that policies are up to date to prevent and address potential retaliation claims.

EEOC Final Guidance on Retaliation

In August 2016, the EEOC issued its final guidance on retaliation claims. The EEOC’s newly released guidance is the first update to its retaliation policy since its 1998 Compliance Manual. Since then, numerous court cases, including a handful of U.S. Supreme Court cases, have substantially changed the law surrounding retaliation.

The EEOC’s guidance states that retaliation occurs “when an employer unlawfully takes action against an individual in punishment for exercising rights protected by any of the EEO (Equal Employment Opportunity) laws.” The guidance covers multiple laws that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

EEOC Interpretation of Retaliation Law 

The basic elements of a retaliation claim have not changed. They are: (1) a protected activity, (2) followed by adverse employment action taken by the employer;,and (3) a causal connection between the protected activity and the adverse action. Although these elements are not new, and most employers are familiar with this standard, the EEOC guidance defines each element much more expansively than in the past.

Protected activity. Employers may not retaliate against an employee for engaging in a “protected activity.” The EEOC’s biggest expansion in its guidance falls in the area of “participation activities.” Participation activities are generally defined as taking part in an EEO process, such as filing an administrative complaint, filing an internal complaint, or providing witness information as part of an investigation.

Under the new guidance, the EEOC takes the position that an employee’s participation in a protected activity should be construed broadly. The guidance states that protected activities “are broad, unqualified, and not expressly limited to investigations conducted by the EEOC.” The EEOC also contends that the reasonableness of the actual claim of discrimination or harassment does not affect a retaliation claim. Therefore, even if an employee’s claim lacks merit, or the employee did not have a reasonable good-faith belief for filing a charge of discrimination with the EEOC, and an employer is ultimately found not to have violated EEO laws in the first instance, the employer may still be liable for subsequent retaliation. The EEOC intends to use this position to try to prevent employers from intimidating employees in order to prevent the filing of complaints. The EEOC also believes that this position will prevent the chilling (dissuasion) of testimony during internal and external investigations. Simply put, employers need to be aware that the EEOC will pursue retaliation claims even when the underlying complaint lacks merit. The EEOC’s position on this issue appears to be contrary to rulings from federal courts, including the 7th Circuit.

Adverse action. The EEOC guidance also expands what it considers adverse action. Adverse action is defined broadly as “action that is ‘materially [significantly] adverse’ meaning any action that might well deter a reasonable person from engaging in protected activity.” Obvious examples of adverse actions include termination, demotion, denial of a promotion, and failure to hire. However, the EEOC includes in the guidance more possible actions that, in their view, can constitute retaliation, including: work-related threats, warnings, or reprimands; removing supervisory responsibilities; and requiring reverification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity. The EEOC goes even further and takes the position that conduct outside of the employer-employee relationship can meet the adverse action test, including taking or threatening to take an adverse action against a family member, even if not an employee.

Causal connection. A retaliation claim requires the employee to demonstrate a causal connection between the protected activity and the adverse action. Essentially, the employee must show the adverse action occurred because of the protected activity. However, while retaliation requires a causal connection, retaliation need not be the only purpose. Although a close temporal connection between the protected activity and the adverse action is frequently used to show a causal connection, the EEOC contends that there is no specific period after which an employer’s actions are immune from a potential retaliation claim. This position is also contrary to established case law. Hence, employers contemplating adverse action against an employee who has previously engaged in protected activity should do so with caution, even months or years later.

Preventing and Addressing Retaliation Claims 

Retaliation claims are a challenge for all employers because they come at a time when an employer is on the defensive, in the wake of some claim or assertion that it, and often a specific employee or supervisor, has done something wrong. To avoid retaliation claims in such scenarios, arm your responsible personnel with the tools to avoid any appearance of retaliation.

The EEOC guidance encourages employers to use a written, plain-language antiretaliation policy that includes:

• Examples of retaliation;
• Steps to avoid retaliation proactively;
• A description of a retaliation-reporting mechanism for employees; and
• A clear statement that retaliation can subject a manager or employee to discipline.

Importantly, policies that allow for termination or discipline when filing a false claim of harassment or discrimination may run afoul of the EEOC’s guidance. Employers that have such language in their policies may want to revise them to limit discipline to “knowing and intentional” false claims.

Employers should know that, even in the EEOC’s view, participation in a protected activity does not immunize an employee from discipline or termination. There are a number of ways employers can demonstrate that an adverse action was nonretaliatory in nature, such as by showing that there was a legitimate, nonretaliatory reason for the adverse action, the action was planned before the protected activity occurred, or the adverse action was applied broadly (e.g., a layoff) and not in response to protected activity. What the EEOC guidance means is this: Actions taken after an employee engages in protected activity will be carefully scrutinized for retaliation in an EEOC investigation. Employers are advised to involve counsel as early as possible in the process to avoid the many pitfalls that surround retaliation claims.

Bottom Line 

Retaliation can set a trap for unwary employers. Retaliation claims already account for about 45 percent of all charges received by the EEOC. In light of the EEOC’s new guidance, this number will likely grow. The expansive view of retaliation taken by the guidance demonstrates that there will be more protected activities and more adverse actions that will lead to EEOC investigations. Employers are well-advised to review and update their retaliation policies in light of the guidance and to discuss with counsel how best to handle and prevent retaliation before a claim is filed as part of an EEOC charge.