Almost 20 years ago, the United States Equal Employment Opportunities Commission (“EEOC”) released a compliance manual outlining its interpretation of federal law prohibiting retaliation. Since that compliance manual was released, there have been countless court decisions bearing upon employment-related discrimination and retaliation. In fact, according to the EEOC, retaliation is now the most frequently alleged basis of discriminatory conduct. Perhaps in light of the foregoing, the EEOC recently issued a new Enforcement Guidance on Retaliation and Related Issues (the “Guidance”). The stated purpose of the Guidance is to communicate the EEOC’s position on retaliation issues and to provide employers some suggested best practices.
There are a number of federal laws prohibiting retaliation in the employment context, including Title VII of the Civil Rights Act, the Age Discrimination Employment Act, the Americans With Disabilities Act, the Equal Pay Act, and Title II of the Genetic Information on Discrimination Act. These laws may be generally referred to as “EEO” laws. According to the Guidance:
Retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces. The EEO anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response.
The first element of a retaliation claim is whether the individual engaged in protected activity. In the Guidance, the EEOC outlines multiple examples of what it considers to be protected activity, including:
- Taking part in an internal or external investigation of discrimination.
- Communicating with the supervisor or manager about discrimination.
- Refusing to follow orders that would result in discrimination.
- Requesting the accommodation of a disability or a religious practice.
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
Finally, it is important to note that such activities may be protected even if the activity being complained of is ultimately found to be lawful.
As with protected activity, the Guidance sets forth a number of examples of what the EEOC believes are materially adverse actions, including some that are work-related actions, and some that are not directly related to work, such as:
- Reprimanding an employee or giving a performance evaluation that is lower than it should be.
- Threatening to make or actually making reports to authorities such as contacting the police or reporting immigration status.
- Scrutinizing work or attendance more closely than other employees, without justification.
In every instance, a fact-driven analysis will apply to determine if the action in question might be likely to deter protected activity.
The final element of a retaliation claim is the existence of a causal connection between protected activity and the materially adverse action. As the Guidance explains, in order to establish a causal connection, the individual must produce sufficient evidence to show that “but-for” a retaliatory motive on the part of the employer, the adverse action would not have occurred. In other words, the individual would not have been subjected to the adverse action “but-for” the retaliatory motive(s). This does not mean that the retaliatory motive has to be the sole cause of the action. There may be multiple “but-for” causes and as long as one of those causes is determined to be retaliation, the employer might be found liable. Facts that might support a finding of retaliation include suspicious timing, oral or written statements made by the individuals involved in the adverse action, and inconsistent or shifting explanations, or any other evidence that the employer’s explanation was pretextual. Alternatively, the Guidance identifies some facts that might defeat a claim of retaliation, including a lack of knowledge of the protected activity by the employer representative who made the adverse decision, and a legitimate non-retaliatory reason for the challenged action.
In order to reduce the risk of a retaliation claim being pursued, the Guidance outlines a number of recommendations for employers. The EEOC refers to these recommendations as “promising practices” because, while “these steps may help reduce the risk of violations,” the EEOC is unaware of “a single best approach for every workplace or circumstance.” The “promising practices” include the following:
- Written employer policies that include a plain language anti-retaliation statement and an outline of the process for reporting concerns about retaliation.
- Routine training of all managers, supervisors, and employees on the anti-retaliation policy and procedures.
- Proactive follow-up any time a concern or concerns are raised by an employee.
Finally, the EEOC recommends that employment actions be reviewed by an EEO specialist, trained management official, and/or outside counsel to ensure that the action in question is based on legitimate business reasons free from discrimination and retaliation.
If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at firstname.lastname@example.org or (608) 257‑2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.