EEOC's New Retaliation Guidelines Require Attention from Employers

The U.S. Equal Employment Opportunity Commission recently issued the final version of its updated guidance on workplace retaliation. The revision – the first related to retaliation in 18 years – seeks to put EEOC guidance in line with recent case law and to respond to the greatly expanding volume of retaliation-related complaints. Since retaliation has become the most common complaint by employees (accounting for over 44 percent of all charges received by the EEOC in 2015), these revisions require a close look by employers.

The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Nondiscrimination Act.

While the guidance does not change the three well-established elements of a retaliation claim – participation in protected activity, a materially adverse action, and a causal connection between the protected activity and adverse action – the EEOC leaves little doubt that it takes a broad view when defining each element. Employers should be prepared.

Participation in Protected Activity Defined

Under the new guidelines, an employee’s engagement in protected activity can be direct (i.e., an employee lodges a complaint) or indirect (i.e., an employee supports another’s complaint). The activity also may be protected even if a claim is inaccurate or untrue, as long as the employee has a reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated.

Scope of Materially Adverse Actions Increased

The guidance also broadens the scope of what employer activities qualify as an adverse employment action. The EEOC points out that adverse action is broader in the context of anti-retaliation than under other nondiscrimination provisions. The EEOC guidance provides that, from the retaliation standpoint, adverse action is any action that might deter a reasonable person from engaging in protected activity, even if it has no tangible effect on the individual’s employment or actually deters the employee from engaging in protected activity. It only has to have the potential to do so.

The EEOC’s guidance provides the following examples, among others, of “materially adverse” actions:

• work-related threats, warnings or reprimands;
• negative or lowered evaluations;
• transfers to less prestigious or desirable work or work locations;
• threatening reassignment;
• scrutinizing work or attendance more closely than that of other employees, without justification;
• removing supervisory responsibilities;
• engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
• requiring re-verification of work status, making threats of deportation or initiating other action with immigration authorities because of protected activity; and
• taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

Causal Connection Loosened

The EEOC’s guidance makes clear that retaliation need only be one of the causes of the adverse action for the employee to prevail. The guidance also lowers the bar for employees by providing that the causal connection may be established by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent. It is not necessary for an employee to point to direct evidence that the adverse employment action was due solely to the employee’s engagement in protected activity.

What Can Employers Do?

The EEOC helpfully added a section on “promising practices” that may reduce the risk of retaliation violations by employers. While not a safe harbor, employers should take note of the following list of suggestions provided by the EEOC:

• Maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;
• Consider training all managers, supervisors and employees on the employer’s written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated;
• Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace;
• Potentially check in with employees, managers and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This strategy may help spot issues before they fester, as well as reassure employees and witnesses of the employer’s commitment to protect against retaliation; and
• Perhaps require decision-makers to identify their non-retaliatory reasons for taking consequential actions and ensure that necessary documentation supports such decisions. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations and emphasize consistency to managers.

More information, including the guidelines, a question-and-answer publication and a Small Business Fact Sheet, can be found on the EEOC’s website, or by contacting a member of Robinson Bradshaw’s Employment and Labor Practice Group.