EEOC Issues New Enforcement Guidance on Retaliation

Earlier this week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues.  The new guidance is the first update to the EEOC’s compliance guide on retaliation since 1998, and it marks the end of the process that began in January 2016 when the EEOC first proposed the new guidance.  The new guidance covers retaliation under each law enforced by the EEOC, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act.

The final guidance reflects the growing trend in retaliation claims – indeed, according to the EEOC, retaliation is the most frequently alleged basis of discrimination and is asserted in nearly 45% of all charges received by the agency.  The new guidance is not likely to slow this trend.  This is because it takes a broader view – and therefore a more employee-friendly view – on each of the three elements that an employee must prove to prevail on a retaliation claim: (1) protected activity; (2) an adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action.

For example, with respect to “protected activity,” the EEOC notes that this can include either “participating” in a complaint process under one of the laws enforced by the EEOC (such as by filing a complaint or serving as a witness), or reasonably “opposing” discrimination made unlawful by one of the laws (such as by complaining about allegedly discriminatory conduct or otherwise communicating a reasonable belief of a perceived violation).  The guidance, however, further clarifies that although protection for “opposition” is limited to those individuals who act with a reasonable belief that the alleged conduct is unlawful, “participation” in an EEO process – including the filing of an internal complaint – is protected regardless of whether the underlying allegation is based on a reasonable belief that discrimination has occurred or is likely to occur.  The EEOC does point out in the guidance that its interpretation does not give employees free rein to file baseless complaints without consequence, but it also cautions that employers who dole out those consequences unilaterally, rather than bringing evidence of bad faith to light in the context of the EEO process, will face greater scrutiny.

The guidance also sets a low bar for what can constitute a materially adverse action.  According to the guidance, a materially adverse action is any action that would reasonably be likely to deter protected activity, which includes not just obvious work-related employment actions like discharge, suspension, refusal to promote or hire, or work-related threats, warnings, and reprimands, but also actions that have no tangible effect on employment or that take place entirely outside of work.  This would include, for example, threatening reassignment, scrutinizing work or attendance more closely than for other employees, or making disparaging remarks about the person to others or the media.

The EEOC guidance offers some “promising practices” for employers to use to reduce the likelihood of a retaliation claim. Chief among those is a clearly written anti-retaliation policy that provides specific examples of what actions may constitute retaliation, as well as a clear explanation that retaliation can be subject to discipline, including termination. Clearly, though, none of these practices will insulate an employer from liability or the obligation to analyze potential retaliation issues on a case-by-case basis.

Social Media and the FMLA

Imagine for a moment: you are the administrator for a skilled nursing facility and your activities director has just informed you of a need to take FMLA leave for shoulder surgery.  You grant the FMLA request and your activities director takes the full twelve weeks he is allowed.  You then learn from his physician that he will need to extend his leave by an additional thirty days to complete physical therapy, which, of course, you oblige as non-FMLA leave.  Everything is fine – until you learn at some point during the director’s non-FMLA leave that he has been quite active and merry during his entire leave, evidenced by numerous Facebook posts showing him visiting Busch Gardens theme park in Tampa (twice), visiting St. Martin for several days, and posing by shipwrecks and cavorting in the ocean.  You learn he also may have been texting pictures of holiday decorations at Busch Gardens to his co-workers, ostensibly to share with them ideas for decorating the facility for the holiday season.  What do you do…what can you do?

This was the actual situation that faced the employer in a recent case from a federal district court in Florida, Jones v. Gulf Coast Health Care of Delaware, LLC.  Ultimately, the facility decided to terminate the activities director, believing that his Facebook and texting activity showed poor judgment as a supervisor and negatively impacted his co-workers.  The facility also claimed that the director’s conduct was prohibited by the facility’s social media policy, which prohibited any “social media usage that adversely affects job performance of fellow associates,” among other things.  The activities director – who later sued alleging FMLA retaliation – claimed that no specific violation of the social media policy was ever given to him as a reason for his termination and that, instead, he was told his was being terminated for abusing the FMLA.

In the end, the court found that the director failed to show causation – i.e. that he was retaliated because of his request to take FMLA leave – and that his retaliation claim therefore failed as a matter of law.  On this point, the court explained that the facility terminated the director for actions while on his FMLA and non-FMLA leave, not for requesting and taking the leave in the first instance, and that courts are generally not in the business of determining whether an employer’s personnel decisions are prudent or fair – as long as they comply with the law.

In this case, the court did not opine in detail on whether the facility’s social media policy tended to make its termination decision more fair than not – nor did it address the interesting question of how the facility actually obtained the director’s social media posts.  On summary judgment, the facts must be construed in the plaintiff’s favor and, in this case, the director disputed that he was told his termination was related to a violation of the social media policy.  Nonetheless, it is more likely than not that the facility’s social media policy would have substantiated its legitimate termination decision – just as it would tend to do for any other employer facing a similar situation.