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.
