The EEOC’s Enforcement Guidance on Retaliation

Less than two weeks ago (August 29, 2016 to be precise) the EEOC issued a final Enforcement Guidance on Retaliation claims under the different laws it enforces. Those laws include: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act… you get the idea. Each of those laws include clauses prohibiting retaliation against those who either complain of discrimination or oppose discriminatory practices or similar actions. (Click here, here and here for a general review of workplace retaliation.) As with its other Enforcement Guidances, this one does not create new law. So what does it do? It gives both employers and agency investigators an idea as to how the EEOC handles retaliation claims in light of recent US Supreme Court cases, if any, or its own position on or interpretation of the laws it enforces. In this case both exist. Let’s have a look — after the jump…

(image from hrwatchdog.calchamber.net)

The EEOC already has in place an Enforcement Guidance on workplace retaliation claims. So, why the push for a new one, then? Well, to be fair, the EEOC’s current Enforcement Guidance dates back to 1998.  A good number of Supreme Court cases have had much to say about retaliation in the last 18 years.  Moreover, the number of retaliation charges has  increased. According to the EEOC, retaliation allegations account for about 45% of all charges it receives. So, in January of this year, the EEOC issued a draft Enforcement Guidance, after which it received feedback from some 60 organizations and individuals before preparing the Final Guidance that we are talking about today. This week we will start looking at how the EEOC defines and interprets the first of the three elements of a retaliation claim. Next week we will finish with the first element, and, hopefully, look at the other elements. If you haven’t had enough of this topic after that, we can look at the Best Practices section of the Enforcement Guidance.

Let’s get started. A retaliation claim challenging action(s) taken because of EEO-related activity has the following three elements:

1. protected activity: this element consists of either participation in an EEO process or opposition to discrimination (more on that in a moment).
2. materially adverse action taken by the employer; and
3. requisite level of causal connection between the protected activity and the materially adverse action.

The first element in turn consists of two elements, “participation” and “opposition”. The EEOC in its proposed Enforcement Guidance takes a very expansive view of these terms, particularly opposition. Let’s not get ahead of ourselves, however.

Title VII’s anti-retaliatory provisions protect participation “in any manner” in an investigation, proceeding or hearing. The EEOC’s position is that the participation clause applies even if the underlying allegation is not meritorious or was not timely filed”. Now, here is where it gets tricky: Generally, when whistleblower laws are involved, the allegations need not be correct, but they must be backed a good faith belief  of illegal activity.  With respect to Title VII and the other mentioned EEO laws however, the EEOC says that it “has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are or could become unlawful conduct”. While the EEOC admits that “the Supreme Court has not addressed this question”, it reasons that the participation clause, “by its own terms, contains no limiting language, and protects from retaliation, employees’ participation in a complaint, investigation or adjudication process.” In other words, unless and until the Supreme Court holds otherwise, employers who do not wish to be defendants in a test case should assume that employees who engage in the above behaviors are protected, good faith belief or not.

What is “opposition”?  Hint: err on the side of inclusion. The Enforcement Guidance specifically says that the opposition clause in Title VII has an “expansive definition”.  Per the EEOC, “the opposition clause applies if the individual explicitly or implicitly communicates his or her belief that the matter complained of is or could become harassment or other discrimination”.  The communication can be informal and need not include the words “harassment” or “discrimination”. Here are some examples provided by the EEOC: a) accompanying a co-worker to Human Resources in order to file and EEO complaint; b) complaining to management about discrimination against oneself or co-workers. That said, even the EEOC says that the opposition clause “does not protect every protest against perceived job discrimination”.  What are the limitations then? The manner of opposition has to be reasonable. Oh. Well that’s helpful. What manner of opposition might be unreasonable? Here are some EEOC examples: a) an overwhelming number of patently specious complaints; b) badgering a subordinate employee to give a witness statement in support of an EEOC charge and attempts to coerce him/her to change that statement; and c) activities constituting unlawful acts such as committing or threatening violence to people or property. These are just a few examples. Reasonableness will depend on specific facts and context.

As with participation, the mere fact that the underlying practice may be found lawful will not defeat a claim of retaliation based on opposition. However, unlike the participation clause, there are some limits here. Statements or actions, to be protected opposition, must be based on a reasonable, good-faith belief that the underlying conduct violates EEO laws. The EEOC takes the position that since conduct might not actually be unlawful but could reasonably be perceived to be, “the reasonable belief standard can apply to protect complainants as well as witnesses or bystanders who intervene or report what was observed”.

Are we done with opposition? Well, while I’m not personally an oppositional type there is more. Since this is a lot to process in one sitting, however, let’s pick this up next week. See you then!

Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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