Retaliation actions are sure to be on the rise. You can thank the U.S. Equal Employment Opportunity Commission (EEOC) for that. On January 21, 2016, the EEOC issued proposed enforcement guidelines that seek to expand the type of conduct that is deemed unlawful retaliation. The proposal marks the first time in nearly 20 years that the EEOC has issued guidelines on retaliation.
Summary of Proposed Guidelines
According to the EEOC, retaliation claims are now the most commonly filed EEOC charges. Since the agency last issued retaliation guidelines in 1998, the percentage of private-sector charges alleging retaliation has roughly doubled. In 2014 alone, almost half of all EEOC charges contained some allegation of retaliatory conduct. Relying on these statistics, the EEOC decided now was as good of a time as any to outline its position on what type of conduct constitutes retaliation. While it is not exactly breaking news that the EEOC is concerned with curbing out unlawful retaliation, the new guidelines are a clear indicator that the EEOC intends to address that concern much more aggressively.
Predictably, the employee-friendly guidelines seek to broaden the scope of what constitutes retaliation. In the 76-page proposal, the EEOC sets forth its position on the well-established elements of a retaliation claim, as well as what it believes are the “best practices” employers can engage in to remedy and prevent retaliation from occurring.
The elements of a retaliation claim are as follows: (1) an employee must engage in a “protected activity,” which can either be a participatory action or the employee’s opposition to discrimination; (2) the employer takes an adverse employment action against the employee; and (3) a causal connection between the protected activity and the adverse action.
The new guidelines would expand these definitions and increase the ways employees can establish retaliation claims.
1) Protected Activity
In general, the guidance proposes to expand the definition of what constitutes protected activity. For example, it does not matter to the EEOC whether the challenged activity is found to be lawful. Rather, as long as an employee subjectively believes that the activity is unlawful, and that belief is not “patently specious,” protected activity may be found. In other words, don’t hold your breath trying to prove that an employee had no basis to believe the challenged activity was lawful.
The guidance also finds that complaints of a hostile work environment can still be protected activity even if the conduct complained of falls “far short of ‘severe or pervasive’ harassment.” The EEOC’s reason is that the hostile work environment liability standard is designed to encourage employees to report unwelcomed conduct before it reaches the point of being severe and pervasive. That’s all well and good, except that it represents a complete 180 from what courts have held on the issue.
Continuing its disregard for court precedent, the guidance also holds that filing an internal EEO complaint may constitute protected activity even if the complaint is not tied to an administrative claim or litigation. Indeed, even being a witness in an internal investigation might count as participation. Courts, by contrast, have routinely held that internal complaints are not protected activity unless made in conjunction with a formal EEOC charge or lawsuit. This new standard is particularly alarming because, with participatory conduct, it does not matter if the employee reasonably believed he or she was complaining about unlawful activity. So, an employee who makes an internal complaint that he or she knows is entirely without merit has likely engaged in protected activity according to the EEOC. Sound logical? Not to me, either.
The guidance also proposes to expand the definition of oppositional activity to include even implicit opposition. For example, an employee who engages in a production slowdown or protests industry discrimination in general (but not specifically at the employee’s workplace), or an employee who merely answers questions in connection with an investigation may be found to have implicitly opposed unlawful workplace activity. Other provided examples include resisting sexual advances and engaging in passive resistance to an unlawful instruction. All of this may now be protected activity.
2) Adverse Action
With regard to the “adverse action” element, the guidance would expand the definition to encompass any action that “might well deter a reasonable person from engaging in protected activity.” In yet another departure from court precedence, the EEOC does not believe it matters whether the employee suffers an adverse employment action, per se. Rather, according to the guidance, an adverse action may be found even where it has “no tangible effect on employment,” or, remarkably, “even an action that takes place exclusively outside work.” All that matters is whether the employer’s action “would be reasonably likely to deter protected activity.” If so, the adverse action element may be met. Nor does it matter whether the adverse action is taken directly against the employee. Adverse actions taken against a relative or someone closely associated with the employee—think firing a child or refusing to hire a good friend—may support a retaliation claim as well.
3) Causal Connection
In an admitted response to court opinions holding that the causal connection element is subject to a “but for” analysis, the EEOC would find a causal connection where stray bits of circumstantial evidence support an inference that the protected activity and the adverse action are connected.
Boil it all down and there is but one conclusion: if the EEOC gets a retaliation charge, they are going to be looking very hard for a way to find retaliation. Employers beware.
In addition to offering its opinion on the elements of a retaliation claim, the guidance also sets forth many examples of what the EEOC considers “best practices” for employers. These suggested practices include:
- Maintaining a written, plain-language anti-retaliation policy, complete with user-friendly examples of what to do and not to do; the policy should also set forth proactive measures for avoiding retaliation, a reporting mechanism, and a clear explanation of disciplinary consequences for engaging in retaliation;
- Providing all managers, supervisors, and employees with proper anti-retaliation training, and tailor the training to ensure that employees are aware of what conduct is protected activity;
- Providing anti-retaliation advice and individualized support for employees, managers, and supervisors;
- Engaging in proactive follow-up during EEO investigations to determine whether there are any concerns of retaliation; and
- Engaging human resources, an EEO specialist, or counsel to review all possible adverse employment actions to rule out the possibility that they are motivated by retaliatory animus.
At this point, the guidance is merely a proposal. There is a public comment period that will last until February 24, 2016, after which the EEOC will likely make some, but not many, changes and then issue finalized guidelines. While EEOC guidelines do not carry the same weight and binding effect as statutes, regulations, or case law, they are a firm indication of how the EEOC will view and investigate retaliation complaints. Accordingly, employers should get out in front of what is sure to be an increase in retaliation charges and investigations. Employers should review their retaliation policies and procedures now and consider making any adjustments necessary to better protect themselves against possible claims. Employers who have any question whether adjustments to their policies are needed should consult with legal counsel.