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New EEOC Guidance: considerations for retaliation claims

robarge-jacquelineThe U.S. Equal Employment Opportunity Commission recently issued a new “Enforcement Guidance” addressing workplace retaliation claims. This is the first time in nearly 20 years that the EEOC has updated its official Enforcement Guidance on this topic.

Although the Enforcement Guidance is not formally binding, most of the principles it details are well established, and courts often give significant weight to the EEOC’s views in deciding these types of cases.

Further, EEOC investigators will almost certainly consider the Enforcement Guidance in evaluating potential claims of workplace retaliation and deciding whether to initiate litigation.

Accordingly, employers should carefully review the Enforcement Guidance and consider how their policies and practices may need to be modified.

Background

Since 1998, when the EEOC’s Enforcement Guidance in this area was last revised, the percentage of employment discrimination charges alleging unlawful retaliation has more than doubled, with nearly 40,000 charges alleging retaliation filed with the EEOC in 2015 alone.

Indeed, since 2009, retaliation has been the single most frequently alleged basis of discrimination under the federal equal employment opportunity (EEO) statutes.

Further, over the intervening years, the U.S. Supreme Court and lower federal courts have issued a number of significant rulings regarding employment retaliation claims. Thus, the EEOC’s updated Enforcement Guidance seeks, in part, to analyze and distill how courts have formulated and applied these precedents.

The major portions of the new Enforcement Guidance are summarized below.

Overview of retaliation claims

Unlawful retaliation occurs when an employer takes a “materially adverse action” against an employee in response to his or her engaging in activity in furtherance of the statutes enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act.

To establish a claim of retaliation, a plaintiff must establish that (1) he or she engaged in “protected activity,” (2) the plaintiff was subjected to a “materially adverse action,” and (3) a causal connection exists between the protected activity and the materially adverse action.

  • Protected activity

As the Enforcement Guidance explains, a plaintiff alleging retaliation must first show that he or she engaged in “protected activity,” either by participating in an EEO process or by expressing opposition to an unlawful discriminatory practice.

Participation in an EEO process refers specifically to asserting a discrimination claim or testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws.

Notably, an individual can establish protected “participation” even if the underlying discrimination claim was not meritorious or was not timely filed. Likewise, a complainant alleging retaliation need not show that he or she actually believed that the plaintiff in the EEO proceeding was the victim of unlawful discrimination.

An individual is also protected from retaliation by an employer for opposing any practice made unlawful under the EEO laws. “Opposition” is construed broadly and includes actions such as complaining to a manager about alleged discrimination, intervening to protect a perceived victim of discrimination, refusing to obey an order reasonably believed to be discriminatory, and calling public attention to an employer’s alleged discrimination.

A plaintiff must demonstrate that his or her opposition was reasonable in form (e.g., not violent or inordinately disruptive) and motivated by conduct believed, in good faith, to be unlawfully discriminatory. However, that belief need not be objectively correct.

Thus, for instance, if an employee honestly, but incorrectly, believes that he was denied a promotion based on his race and complains about that decision, the employer may not penalize the employee for raising the complaint, even if the employee’s race played no role whatsoever in the decision.

This is a particularly crucial point for an employer to keep in mind when a current employee asserts a claim of discrimination. Supervisors whose conduct is brought into question may well be upset and tempted to lash out against the employee for raising an accusation perceived as unfounded and damaging. Doing so, however, is likely to subject the employer to liability for retaliation, even if the underlying claim of discrimination is meritless.

  • Materially adverse action

As the EEOC’s Enforcement Guidance goes on to detail, the second required element of a retaliation claim is a showing that the employer took a materially adverse action against the plaintiff. The term “materially adverse action” is construed broadly, encompassing any action that might deter a reasonable person from engaging in protected activity.

Notably, under the Supreme Court’s 2006 Burlington Northern v. White decision, the “materially adverse action” standard for retaliation claims is broader than the “adverse action” standard applicable to other types of discrimination claims.

For instance, if an employee alleges only that he received a negative performance review based on his religion, without any direct effect on his position or compensation, it is unlikely that the employee will succeed in demonstrating the requisite “adverse action” needed to support a religious discrimination claim.

By contrast, if the negative performance review were motivated by the employee’s participating in an EEO proceeding or complaining of discrimination, the review would likely qualify as a “materially adverse action” for purposes of a retaliation claim.

Other examples of materially adverse actions that may support a retaliation claim include a denial of a promotion or pay increase; a demotion or pay cut; a disciplinary warning, suspension or termination; an unwanted job transfer; and any other action that may diminish an employee’s work status or make the employee believe that his or her job is in jeopardy.

Importantly, a materially adverse action may even take place outside the workplace or have no direct effect on a plaintiff’s employment.

Importantly, a materially adverse action may even take place outside the workplace or have no direct effect on a plaintiff’s employment. Examples include disparaging an individual to others or the media, subjecting a complainant to verbal abuse, threatening an employee with deportation, making false reports to the authorities, or taking some negative action toward a person in a close relationship to the plaintiff.

Any such action may qualify as a “materially adverse action” if it would tend to deter a reasonable person from engaging in protected activity, even if the adverse action is not directly related to the individual’s employment.

  • Causal connection

Finally, a plaintiff alleging retaliation must show a causal connection between his or her protected activity and the materially adverse action. For most retaliation claims, this requires a showing that “but for” an unlawful retaliatory motive, the employer would not have taken the adverse action. Thus, even if a retaliatory animus partially motivated an adverse action, the employer may still be able to prevail if it can show that the action nonetheless would have been taken for other, non-retaliatory reasons.

However, for Title VII and ADEA retaliation claims brought by federal-sector employees, a broader standard applies. In such cases, retaliation may be established by showing that protected activity was a “motivating factor” in the adverse action, even if other factors also motivated the action.

  • Defeating retaliation claims

The Enforcement Guidance also includes a section entitled “Examples of Facts That May Defeat a Claim of Retaliation.” As the section details, an employer may prevail on a claim of retaliation by proving that the action at issue was motivated by legitimate factors, such as poor performance, insufficient job qualifications, misconduct or a reduction in force.

Recommendations for employers

In light of the issues highlighted in the EEOC’s updated Enforcement Guidance, there are a number of steps that we suggest employers consider taking. These recommendations closely mirror the “Promising Practices” (a term preferred by the EEOC over the more common “Best Practices”) that the EEOC outlines in the concluding section of the Enforcement Guidance.

First, employers should carefully review the Enforcement Guidance and consider, in consultation with employment counsel, how their policies and practices relating to workplace retaliation may need to be revised.

Second, managers, supervisors and human resources personnel should receive periodic training on how to avoid potential claims of retaliation, including recognizing and responding appropriately to activity protected under the EEO laws.

Additionally, while a discrimination claim remains pending, whether with an agency or a court, an employer might periodically check in with managers and other involved parties to ensure that unlawful retaliation prompted by the claim does not occur.

Finally, employers should remain alert for further legislative, agency and court developments in this area of the law.

Given the rapid growth of retaliation claims within recent years, attention to these issues is critical.

Jacqueline A. Robarge practices at Schwartz Hannum in Andover, Massachusetts. The firm represents management in labor and employment law matters.

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