the situation
Retaliation claims continue to be a favorite of employees and are the
most frequently alleged bases for discrimination. Employers should be
aware of the ever present risks of such claims. So what is the EEOC’s
take on what constitutes retaliation?
the ruling
On August 29, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues (found here).
This guidance was issued to replace the EEOC’s Compliance Manual
section on retaliation. The EEOC published its proposed guidance back
in January of 2016 and then received public comment. According to the
EEOC, the final guidance reflects the EEOC’s consideration of feedback
from about sixty organizations and individuals representing a wide range
of viewpoints and some views expressed at an EEOC meeting on the topic
in June of 2015.
In connection with the issuance of the final guidance, the EEOC has also issued a question and answer publication (found here). Below are some of the highlights.
The EEOC explains that engaging in a protected activity can mean
either participating in an EEO process or reasonably opposing conduct
made unlawful by an EEO law. And participation in the process is
protected “whether or not the EEO allegation is based on a reasonable,
good faith belief that a violation occurred.” The EEOC points out that
does not mean that allegations made in bad faith are not without
consequence and that an employer is “free to bring those to light” in
the EEO matter, but cannot directly impose consequences for
participating in the EEO matter.
On the other hand, the protection for opposing conduct made unlawful by
an EEO law is limited to those who act with a reasonable good faith
belief that the conduct opposed is lawful or could become lawful if
repeated. This would even include conduct that courts have determined
not to be in violation of EEO laws, as long as the EEOC has adopted the
interpretation that is a violation.
Retaliation is based on a claim that a materially adverse action was
taken against the employee. A materially adverse action is any action
that might deter a reasonable person from engaging in protected
activity. The EEOC takes the position that this action does not have to
be related to the workplace at all, explaining that this can be action
that is work-related or “one that has no tangible effect on employment,
or even an action that takes place exclusively outside of work”—just as
long as it would reasonably dissuade a person from engaging in protected
activity.
The EEOC also now provides some examples of “materially adverse
actions,” including work-related threats, warnings or reprimands,
negative or lowered evaluations, transfers to less prestigious or
desirable work or work locations, making false reports to government
authorities or the media, filing a civil action, threatening
reassignment or scrutinizing attendance more closely than others,
removing supervisory responsibilities, engaging in abusive verbal or
physical behavior, requiring re-verification of work status or taking
some action related to immigration status, terminating a union grievance
process, or taking or threatening to take a materially adverse action
against a close family member.
Additionally, the EEOC now takes the position that it even if the
alleged materially adverse action did not stop the employee from
asserting his or her protected rights, it could still serve as the basis
for the retaliation (but just might affect the damages the employee
might receive).
the point
Most employers are already tuned in to the hazards of a retaliation
claim—which are potentially only expanded by virtue of this new
guidance. Although courts may not agree with the EEOC’s position on some
of these issues, this final guidance does provide employees with some
additional ammunition when pursuing retaliation claims.