The Equal Employment Opportunity Commission (“EEOC”) recently issued its final enforcement guidance (“Guidance”) on employment-related retaliation. Employers should be aware of the Guidance and incorporate it into policy, as the Guidance represents a significant expansion of the EEOC’s view on what is protected activity in the workplace and when a cognizable retaliation claim can occur.

Why the EEOC Issued the New Guidance

This is the first Guidance on retaliation issued by the EEOC since 1998. The EEOC noted that since 1998, the Supreme Court and lower courts have issued numerous significant rulings on employment retaliation claims. Furthermore, the EEOC also stated that retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce. Indeed, in 2015, there were 39,757 retaliation charges filed with the EEOC, which represented 44.5% of all charges filed in that year.

The Guidance provides a comprehensive framework for how the EEOC views retaliation claims under not only Title VII of the Civil Rights Act of 1964, but also the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Nondiscrimination Act. All of these statutes (the “EEO Laws”) prohibit retaliation and related conduct.

Protected Activity Under EEO Laws

Retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO Laws the EEOC enforces (“protected activity”). Generally, protected activity consists of either (1) participating in an investigation or legal proceeding arising under any of the EEO Laws; or (2) opposing conduct made unlawful by an EEO Law.

The first prong — participating in an EEO process — is usually easier to spot. An individual is protected from retaliation for having made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the EEO Laws. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination.

The second prong — opposing conduct made unlawful by an EEO Law — is much more amorphous. The Guidance provides several examples of “protected opposition” that might invoke protection of the EEO Laws’ anti-retaliation provisions, such as:

• Employees who complain to management and human resources about harassment based on a protected class. This includes complaints about harassment that has yet to rise to a severe or pervasive level (i.e., a complaint about inappropriate graffiti in a corner of the workplace).
• Employees who provide information to an employer in an internal investigation to corroborate a coworker’s harassment allegation. (Note: According to the EEOC, this activity can also fall under the participation prong.)
• Employees who refuse to obey a supervisor’s illegal order to take an illegal action (i.e., a direction to not hire people of a certain characteristic).
• Human Resource personnel who report EEO Law violations to the company.
• Employees who intervene in a supervisor’s inappropriate sexual advances (i.e., asking a supervisor to “stop it” after observing his constant advances toward a particular employee).
• Employees who ask for exceptions to uniform policies as a religious accommodation (i.e., requesting to wear a religious headscarf).
• Employees who ask for an accommodation due to their disability.
• Personnel who complain about being paid less than individuals outside of a protected class (i.e., an employee who complains about being paid less than her male counterparts). The EEOC also noted that in addition to the EEO Laws, Executive Order 11246 (applying to federal contractors and subcontractors) and the National Labor Relations Act (applying to non-supervisory employees) also provide protection.  

Many of these examples represent a significant expansion of the general rule that an employee be required to have a good faith belief that an EEO Law was violated.

Materially Adverse Actions

A retaliation claim can only be brought when an employer takes a “materially adverse action” based on an employee’s protected activity. Generally, this is viewed as any act that would dissuade an employee from undertaking a protected activity. The Guidance provides many examples of materially adverse actions, both severe and also less egregious, that occur both inside and outside of the workplace.

Workplace-Related Actions: These actions include denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge. However, the Guidance also states that there are many other less obvious types of materially adverse employer actions that could support a retaliation claim, such as work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, workplace sabotage, transfers to less prestigious or desirable work locations, or even being disinvited from weekly employer lunches or meetings.

Non-Workplace Related Actions: The Guidance also provides examples of how an employer can take a materially adverse action against an employee outside of the workplace. These examples include disparaging an employee to the media, making false reports to government authorities, filing civil actions and engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity.

Causation

Finally, the Guidance discusses the causation standard for unlawful retaliation. In order for an employee to have a cognizable retaliation claim, there must be a causal connection between a materially adverse action and the individual’s protected activity. The Guidance discusses several types of factual examples that help infer causation, including:

• Suspicious timing of the adverse action.
• Oral or written employer statements that reveal retaliatory intent.
• Comparative evidence showing that similarly situated employees who did not engage in protected activity were treated more favorably.
• Inconsistent or shifting explanations by the employer as to the reason for the adverse action.

The Guidance also provides examples of facts that may defeat a retaliation claim, such as an employer being unaware of the protected activity when it took an adverse action or an employer having legitimate non-retaliatory reasons for an adverse action (i.e., documented poor employee performance).

Employer Takeaways

Finally, the Guidance provides several “promising practices” for employers in order to minimize the likelihood of retaliation violations. These practices include written employer policies, training of all employees, especially managers and supervisors, anti-relation support for supervisors and proactive follow-up, and review by HR or counsel of employment actions to ensure EEO compliance.

The Final Guidance can be found here. Attorneys in Taft’s Labor and Employment group are available to answer any client questions regarding the Guidance or how to avoid employer liability for retaliation.