The Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues on August 29, 2016 to replace the 1998 Compliance Manual. Reflecting feedback from about 60 individuals and organizations, changes in the EEOC’s Guidance explored what conduct could be deemed retaliatory along with the concept of causation.
The Supreme Court and lower courts since 1998 have issued several notable rulings regarding employment-related retaliation. Currently, retaliation is the most frequently alleged basis of discrimination in all sectors, including the federal government workforce, representing nearly 45% of all charges – almost double since 1998.
The EEOC analyzed interpretation and application by the courts to specific facts while preparing the Guideline; notable was the lower courts uniform interpretations of relevant statutes regarding retaliation issues. When the EEOC agreed, the Guidance unequivocally explained the law on such issues; when there were differing interpretations, the EEOC offered explanation of its position.
As regards to the three-elements of a retaliation claim, the Guidance maintains EEOC’s broad view in defining each component: an employee’s participation in a protected activity, such as a complaint of discrimination or harassment; a materially adverse action against the employee by the employer; an incidental connection between the protected activity and adverse action.
Among others, employee actions that are protected from retaliation include: refusing to follow orders that would foster discrimination; resisting sexual advances (or intervening to protect others from such); being a witness in a charge, complaint, or lawsuit alleging discrimination; communicating with a supervisor about employment discrimination or harassment; or requesting accommodation for a disability or religious practice.
As regards protected activity, the EEOC maintains any role in an internal investigation is protected participation. Accordingly, any employee may make a complaint of unjust treatment (broad or ambiguous) unaware of the anti-discrimination laws and such communication would be considered protected if the employee complaint could reasonably have been interpreted as opposition to discrimination.
Along with stating the manner of opposition must be reasonable, the Guidance allows for a scope that includes complaints made to coworkers, attorneys, parties outside the company, or even publicly. The EEOC is firm that employee complaints or opposition activities based on reasonable, good faith assertions will be protected.
Additionally, expanding the definition of adverse action is a goal of the Guidance – including activity that may deter protected activity even if it has no effect on a person’s employment. The EEOC determines adverse actions can be actions unrelated to work, take place outside of work, even be against a third party linked to a complaining employee.
The Guidance also expands what qualifies a causal connection between protected activity and adverse action. A casual connection may be argued when different pieces of convincing circumstantial evidence show retaliatory intent – even going back years.
To reduce the risk of retaliation violations, the EEOC includes a section in the Guidance on promising practices. Among proactive steps employers can note are including clear anti-retaliation language in written policies for employees with examples of conduct management might not know is actionable, instituting a reporting mechanism for employee concerns about retaliation (such as a compliance hotline), providing all parties and witnesses to alleged discriminatory acts and information on avoiding engaging in retaliation.