We were in the middle of the EEOC’s Enforcement Guidance on Workplace Retaliation last week. We left off discussing what activity would be opposition to discrimination (and therefore protected from retaliation). Click here for review. Who exactly is protected from opposition-based retaliation? What might be some good examples of opposition? Who would be included among people engaging in protected activity generally? The EEOC discusses these very issues in its 39-page Enforcement Guidance. Wait, you may be thinking: “I’d sure like to know the answers to these questions, but do I really have to read through 39 pages to get them?” Nope, I did that for you (I know I need to get out more). So follow this post after the jump to benefit from my legal nerdiness…
(image from gsblaw.com)
According to the EEOC, all employees engaging in opposition are protected. Does that include management? Yep, and Human Resources people too. Says the EEOC: “The statutory purpose of the opposition clause is promoted by protecting all communications about potential EEO violations by the very officials most likely to discover, investigate and report them; otherwise there would be a disincentive for them to do so”. As with any other employee, managerial employees must meet the same criteria as anyone else. Their activities must meet the definition of “opposition” (again click here for a review); the manner of opposition must be reasonable, and they must have a reasonable, good faith belief that the opposed practice is unlawful.
The EEOC provides the following categories and examples of protected opposition:
- Complaining or threatening to complain about discrimination or sexual harassment, Even if Not Yet Severe or Pervasive: the example provided is a woman complaining about graffiti that is derogatory toward women.
- Providing information in an internal investigation of an EEO matter: e.g. an employee identified as a witness in an investigation of a co-worker’s sexual harassment allegations.
- Refusing to obey an order reasonably believed to be discriminatory: for example, one who works for an employment agency referring people to refer temporary and permanent positions with corporate clients who refuses to obey a manager’s instructions not to refer any African-Americans to a particular client per the client’s request.
- Advising an employer on EEO compliance: The example provided here is an H.R. manager who reports ADA violations to management.
- Resisting sexual advances or intervening to protect others: telling a supervisor to stop his/her sexual advances, along with a co-worker asking the supervisor to stop would both constitute protected opposition.
- Passive resistance: e.g. refusing to implement instructions that interfere with other employees’ complaints.
- Requesting reasonable accommodations for a disability or religion: e.g. an employee’s request to wear a religious head scarf as an exception to a new uniform policy.
- Compensation-related discussions/activity: The EEOC takes the position that discussing one’s compensation either with management or with co-workers is protected opposition.
What truly is the range of people protected from retaliation for protected activity? We have touched upon a few of them, but let’s take a better look. According to the EEOC, anti-retaliation protections extend to the following people:
- participants in the EEO process, whether as a complainant, representative or witness, regardless of job functions or managerial status;
- those who in good faith oppose discrimination on their own or someone else’s behalf, whether or not the underlying allegations are found to be true;
- one who communicates his/her intention to file a charge or lawsuit, whether or not they ultimately do so;
- one whose protected activity involved a different employer (e.g. one who filed a discrimination charge against a former employer);
- one whose protected activity occurred while s/he was still employed but who is retaliated against after the employment ends (e.g. former employer retaliates by giving unjustified, negative job reference);
- those who raise discrimination allegations but are not covered by the substantive provisions of the applicable law(s), e.g. employee under 40 years old brings an age discrimination complaint;
- one whose activity refers to any provision of the ADA, not just the employment discrimination title, e.g. opposing discrimination relating to public accommodations.
Guess what? We are ready to move on the Element #2, known as the Materially Adverse Action. I can feel your excitement. Let’s stay focused though. Per the EEOC, a Materially Adverse Action is “any action that might well deter a reasonable person from engaging in protected activity”. That rather vague definition comes from the US Supreme Court case Burlington Northern & Santa Fe Railway Co v White 548 US 53 (2006). This is a fact-sensitive determination. The EEOC does provide some help here, though. It provides the following 4 categories, and some examples:
- Work-related: this category includes denial of promotion, refusal to hire, denial of benefits, suspension, discharge, work-related threats, reprimands, transfers, negative evaluations transfers to less prestigious/desirable work, even exclusion from meetings or functions where the employee would reasonably expect to be included.
- Actions That Are not Work-Related: Such actions may not have a tangible effect on employment and may take place exclusive outside of work, but could still dissuade a reasonable person from engaging in protected activity. The Enforcement Guidance does not actually provide any examples for this category.
- Harassing conduct, also known as “retaliatory harassment“: this type of harassment need not be severe or pervasive enough to alter the terms and conditions of employment. As long as the harassment under the specific circumstances would be sufficiently material to defer the protected activity, it is “actionable retaliation”.
- Third-Party Retaliation, or harming a third party closely related to or associated with the complaining employee. Example: an employee might not complain about discrimination if s/he knew that his/her significant other would be fired.
Well, we covered a lot today! But wait we’re not done! We still don’t know what would be sufficient causal connection between the adverse action and the protected activity. Well, now don’t worry, we’ll get to that one 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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