The Guidance supersedes the EEOC’s prior guidance on retaliation that it issued in 1998. Since that time, there has been an enormous upsurge in retaliation claims, with a 78-percent increase in the last 10 years.

Effective August 29, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued Enforcement Guidance on Retaliation and Related Issues (“Guidance”), along with a Questions and Answers Guide, and a Small Business Fact Sheet. Although the Guidance is not binding, courts often view EEOC Guidance as persuasive authority.

The Guidance addresses retaliation under each of the statutes that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act, the Equal Pay Act (“EPA”) and the Genetic Information Non-Discrimination Act (“GINA”).

The Guidance supersedes the EEOC’s prior guidance on retaliation that it issued in 1998. Since that time, there has been an enormous upsurge in retaliation claims, with a 78-percent increase in the last 10 years. Retaliation is now the most common type of claim in charges filed with EEOC.

Key Provisions of the New Enforcement Guidance

In order to set forth a claim of retaliation, an individual must show that he or she: (1) engaged in “protected activity,” (2) suffered an “adverse employment action” and (3) that the protected activity caused the adverse employment action. The Guidance addresses each of these elements of a retaliation claim, generally taking a broad view of conduct and circumstances that meet these elements.

Expansive View of Protected “Participation” and “Opposition” Activity

“Protected activity,” for purposes of the first prong of a retaliation claim, may be “participation” and/or “opposition” conduct.

“Participation” conduct encompasses a narrower range of formal activities, such as filing an EEOC charge or providing witness information for a discrimination case. Notably, the Guidance views conduct to be protected “participation” almost regardless of its content. In adopting this view, the EEOC rejects case law that has held an employee’s false, malicious statements during an equal employment opportunity (EEO) investigation or proceeding to be unprotected. The Guidance advises, however, that the fact-finder, investigator or adjudicator of an EEO claim should consider any false or bad-faith statements by the complaining employee.

“Opposition” conduct encompasses a broader range of activity, including communicating resistance to a perceived EEO violation. An individual engages in protected “opposition” conduct if he or she acts with a reasonable, good-faith belief that the conduct being opposed is unlawful (even if it is, in fact, not unlawful). For example, the Guidance states that an employee who opposes conduct on the basis of sexual orientation (even though sexual orientation is not explicitly protected under Title VII) has engaged in reasonable, good-faith “opposition” activity since the employee’s view is in line with the EEOC’s interpretation that such conduct constitutes sex discrimination under Title VII. The EEOC also expands its interpretation of protected “opposition” to include more passive activities, such as letter writing, picketing or accompanying a co-worker to file an internal EEO complaint.

Rejection of the “Manager Rule”

The Guidance rejects the “manager rule” that several Circuit Courts of Appeal have adopted. The “manager rule” provides that a managerial employee (or human resources professional) with a duty to report or investigate discrimination must “step outside” his or her role and assume a position adverse to the employer in order to engage in protected activity. Instead, the EEOC has taken the view that such an employee does not need to satisfy a higher standard than other employees in meeting the “protected activity” element of a retaliation claim.

Protecting Employee Communications About Pay

Aligning with the views of other federal agencies, most notably the National Labor Relations Board (“NLRB”) and the Office of Federal Contract Compliance Programs (“OFCCP”), the EEOC has now formally taken the view through the Guidance that it is unlawful for an employer to take adverse action against an employee for asking managers or co-workers about pay or for disclosing or discussing pay, as such activities may constitute protected “opposition” conduct.

To illustrate protected “opposition” conduct in this context, the Guidance provides an example of a female employee who learns that her male co-workers are earning a higher hourly rate and asks her supervisor about the disparity and potential gender-based pay discrimination. Her questioning of her supervisor would be considered “opposition” conduct even if she does not move forward with a formal complaint. As another example, the Guidance states that an employee who discusses with co-workers her belief that she is being paid less based on her race is engaged in protected “opposition” conduct.

Broad View of “Adverse Employment Actions”

The Guidance takes an expansive view of what constitutes a “materially adverse” employment action. Consistent with the U.S. Supreme Court’s view, the EEOC interprets an action to meet the standard of “material adversity” if it “might well deter a reasonable person from engaging in protected activity.” Actions that take place inside or outside the workplace can meet this standard. The Guidance provides examples of adverse actions taken after an employee’s EEO complaint, such as a manager’s refusal to invite an employee to a team lunch or giving a negative reference about the employee to a potential new employer.

Evidence to Demonstrate Causation

The causation element is often the most contested element of a retaliation claim. The Guidance recognizes that the “but for” standard articulated by the U.S. Supreme Court in University of Texas Southwest Medical Center v. Nassar, 133 S. Ct. 2517, 2528 (2013), is the governing standard for causation in retaliation claims against private sector employers. (For federal employers, the “motivating factor” standard applies.)

Recognizing that employees often do not have “direct” proof that protected activity caused the adverse action, the Guidance explains that employees may show causation through a combination of evidence that, alone or together, supports an inference of retaliation. Examples of such evidence may include close timing between the protected activity and the adverse action or evidence that the individual was treated more harshly for engaging in the same or similar conduct as other employees.

Interference with ADA Rights

The Guidance also addresses the ADA’s prohibition against interference, which is broader than retaliation under the ADA. The Guidance states the EEOC’s view that it is unlawful interference under the ADA to coerce, intimidate, threaten or otherwise interfere with an individual’s own exercise of ADA rights or his or her assistance of another to exercise ADA rights. The Guidance offers examples of such prohibited interference, including coercing an individual to forgo an accommodation or indicating to an applicant that making a request for an accommodation would jeopardize the individual’s candidacy for a position.

What the Guidance Means for Employers

With this Guidance, the EEOC has updated its official interpretation of retaliation law. Therefore, it may be a good time for employers to review their policies and practices in this area. In doing so, employers may want to take note of the EEOC’s recommendations (or “promising practices”) for avoiding retaliation set forth in the Guidance:

• Adopt a written anti-retaliation policy, with user-friendly examples, steps for avoiding actual or perceived retaliation, mechanisms for reporting concerns and resolving disputes and an explanation that employees may be subject to discipline, including termination, for engaging in retaliation.
• Build in an automatic process for discussing the anti-retaliation policy after an employee has raised an EEO concern.
• Eliminate policies that punish employees for discussing wages.
• Train all employees (not just managers and supervisors) on how to recognize and avoid retaliation. Customize the training for the particular workplace.
• Proactively follow up with employees, managers and witnesses during pending EEO matters.
• Vet proposed employment actions of consequence (e.g., through human resources or in-house counsel) to ensure they are based on legitimate reasons and not “tainted” by unlawful discrimination or retaliation.

Employers may wish to consult with legal counsel to consider the above recommendations and to evaluate potential changes to their existing policies and practices. Further, in order to minimize the risk of a retaliation claim, employers should consult with legal counsel regarding potential actions that may implicate anti-retaliation protections, including internal investigations of EEO concerns or adverse employment decisions contemplated against an employee who has previously raised an EEO complaint (no matter the timing of the complaint).

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