EEOC Issues Proposed Guidance on Retaliation Claims

For plaintiffs to be successful on a retaliation claim, they must show the following three elements: 1) protected activity; 2) adverse employment action taken by employer; and 3) casual connection between the protected activity and the adverse action. These elements are not new, but the guidance defines the terms much more broadly than in the past. What follows is an outline of key elements of the new guidance and suggestions on resulting best practices.

Protected Activity

Private employers, labor organizations, and government employers are prohibited from retaliating against an individual who engages in “protected activity.” This is defined as either: 1) participating in an EEO process (such as providing witness information, making an internal complaint, filing an administrative charge, filing a lawsuit alleging a violation of EEO law); or 2) opposing a practice made unlawful by one of the employment discrimination statutes (such as communicating a reasonable belief that the employer's activity violates the EEO laws) or engaging in non-verbal acts of opposition (such as refusing unwanted sexual advances of a supervisor).

Opposition Activity

Historically, “opposition activity” has been more frequently litigated. Such activity has always included providing witness information, assisting in an EEO proceeding, or filing an administrative charge or lawsuit asserting discrimination. The majority of courts have held that filing an internal complaint before filing an administrative charge is “opposition activity” and not “participation activity.” The recent proposed guidance, however, disagrees. The significance of this difference is explained below.

Participation Activity Expansion

The EEOC takes the position that participation in protected activity is to be construed broadly and is not impacted by the reasonableness (or unreasonableness) of the underlying allegations of discrimination. Therefore, even if the employee's underlying discrimination claim lacks merit, the employee can still advance a retaliation claim. The EEOC contends that this outcome is intended to ensure that employers cannot intimidate their employees into forgoing the complaint process. It also helps ensure that the investigator can obtain witnesses' unchilled testimony. This is a key development because it ensures employees can prevail on a retaliation claims even when their underlying claim is meritless and even bogus.

This concept is not new. In fact, in April, before the U.S. Court of Appeals for the Fifth Circuit, the EEOC argued that even more broad retaliation protections apply. In EEOC v. Rite Way Service, Inc., No. 15-60380 (Apr. 8, 2016), the EEOC argued that an employee was protected from retaliation, even though the employee did need not hold a reasonable belief that the unlawful harassing conduct had occurred. Fortunately, the EEOC lost this argument. In Rite Way, the plaintiff, an employee for a cleaning service, participated in an internal sexual harassment investigation and submitted a report regarding what she perceived as sexual harassment. She was ultimately fired. The Fifth Circuit held that a third-party witness who answers her employer's questions about another employee's harassment complaint is only protected against retaliation if she reasonably believes that the underlying harassment violates federal law.

The guidance also makes clear that participation in protected activity, whether an internal complaint process or a lawsuit, does not make the employee immune from discipline or even termination. However, employers must proceed cautiously. The employer should be certain that the discipline or termination is a product of legitimate, non-discriminatory decision-making before the adverse action is imposed. While this is always true, it is paramount when the object of the discipline is an employee who recently engaged in protected activity. This is particularly important since the guidance makes clear that such a decision will be highly scrutinized by EEOC investigators.

Adverse Action

In the retaliation context, adverse action is defined broadly as “action that is 'materially adverse' meaning any action that might well deter a reasonable person from engaging in protected activity.” Denial of a promotion, refusal to hire, and termination of employment are obvious material adverse actions.

Low Threshold to Establish an Adverse Action

However, the guidance also notes that work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, verbal or physical abuse or any other type of adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity, is also materially adverse. Moreover, conduct outside of work can also meet this test. Other potential examples of adverse action include threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification; or giving an inaccurately lowered performance appraisal or job reference, even if not unfavorable. This broad definition of “adverse action” makes it easier for plaintiffs to prove that they were subjected to unlawful retaliation.

Causal Connection

Unlawful retaliation is established when it is proven that the employer took the adverse action because the charging party engaged in protected activity. In private sector, state and local government cases, the individual must show that “but for” a retaliatory motive, the employer would not have taken the adverse action. However, retaliation does not have to be the sole cause of the adverse action.

Be Leery of Close Timing

The causal link between the adverse action and the protected activity is often established by evidence that the adverse action occurred shortly after the plaintiff engaged in protected activity. However, there is no magic time period in which the employer becomes immune from a potential retaliation claim. For instance, the guidance provides that a 14-month interval between a plaintiff's filing of an EEOC Charge and her termination would not conclusively disprove retaliation where the plaintiff's manager frequently mentioned the EEOC charge in the interim. Therefore, employers seeking to terminate employees who have engaged in protected activity in recent days, months, or even years should do so with caution.

Remedies

Retaliation claims can be costly for employers. The EEOC has the authority to sue the employer for temporary or preliminary relief before completing its processing of a retaliation charge. The guidance suggests that such relief is appropriate in situations where there is a substantial likelihood that the challenged action will be found to constitute unlawful retaliation and the charging party and/or the EEOC will likely suffer irreparable harm because of the retaliation.

Plaintiffs are also entitled to back pay (lost wages from the date of the adverse action until the date of judgment) and front pay (future lost wages if their retaliation claim is successful.) Punitive and compensatory damages are also available to plaintiffs with damage caps based on the size of the employer under certain EEO laws.

Best Practices for Employers

Most importantly for employers, the guidance provides best practices for employers to follow. It encourages a written plain-language anti-retaliation policy that includes:

• Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation (because they would deter a reasonable person from engaging in protected activity);
• Proactive steps for avoiding actual or perceived retaliation, including guidance for managers and supervisors with employees who have lodged discrimination allegations against them;
• A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
• A clear explanation that retaliation can be subject to discipline up to and including termination.
• The policy should not include language that makes the employee fear retaliation, such as warning employees that reports of discrimination found to be false will subject the worker to disciplinary action.
• This guidance is significant because many companies have policies that provide making false claims is a terminable offense. These policies will need to be revised, if the guidance becomes final. However, you still may want to explain that knowing and intentional false claims can lead to discipline. To do this, you need to work with counsel.

In addition to a well delineated written policy, the guidance encourages training such as:

• Training all managers, supervisors, and employees on the employer's written anti-retaliation policy;
• Sending a message from top management that retaliation will not be tolerated, providing information on policies and procedures in several different formats and holding periodic refresher training;
• Tailoring training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace and providing examples on how to avoid problematic situations;
• Giving advice to managers and supervisors about ensuring discipline and performance evaluations of employees for legitimate, non-retaliatory reasons;
• Emphasizing that those accused of EEO violations, and in particular managers and supervisors, cannot act on feelings of revenge or retribution.

Last, the guidance suggests that an automatic part of the employer's response to a claim of EEO discrimination should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. This debriefing should encourage the potential retaliator not to act out of anger or personal feelings when carrying out managerial duties against the employee who engaged in protected activity.

Conclusion

While the EEOC's guidance is not final, it does provide employers with helpful insight into how the EEOC will investigate a retaliation claim. Now that you know their playbook, employers should take a hard look at their anti-retaliation policies to determine if the policy complies with the EEOC's guidance. If not, the policy should be revised before the next EEO discrimination charge is filed.

Robert G. Brody is the founder of Brody and Associates, LLC. Katherine M. Bogard is an attorney at the firm.