On August 25, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a guidance document titled “EEOC Enforcement Guidance on Retaliation and Related Issues.” Noting that “[t]he federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment,” the guidance sets forth the EEOC’s interpretation of the law of retaliation, which has become “the most frequently alleged basis of discrimination in all sectors” of the workforce.
In defining retaliation, the EEOC’s guidance lists three prerequisites to bringing such a claim: (1) protected action taken by an employee; (2) “materially adverse” action taken by the employer; and (3) a causal connection between the employee’s protected action and the materially adverse action taken by the employer. Thus, when analyzing an employee’s claim that an employer took materially adverse action against him or her, the EEOC’s first inquiry is “whether there was an earlier complaint or other EEO [equal employment opportunity] activity that is protected by the law.”
“Protected activity” includes “participating” in an EEO process or “opposing” discrimination, and the guidance notes that these two types of protected activity have separate statutory bases. Whereas participation in an EEO process is narrowly defined as “raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the EEO laws,” opposition activity involves a “broader range of activity by which an individual opposes any practice made unlawful by the EEO statutes.” Importantly, however, the retaliation laws only protect opposition activity for those individuals “with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it.” Conversely, the guidance reiterates the EEOC’s position that participation in the EEO process is a protected activity regardless of whether or not the individual has a reasonable, good faith belief that the allegations are or could become unlawful.
The guidance takes an expansive view of “materially adverse action”. Quoting a 2006 Supreme Court decision, the guidance defines materially adverse action as “any employer action that ‘might well deter a reasonable employee from complaining about discrimination.”’ Thus, to be materially adverse, an employer’s action does not necessarily have to have a tangible effect on employment, nor does it necessarily have to take place at the office. The guidance reaffirms that in determining whether an employer’s action was materially adverse, the EEOC will look simply at whether such action might dissuade a reasonable person from engaging in a protected activity.
Examples of materially adverse actions include: disparaging remarks made about the employee to others or in the media; making false reports about the employee to government authorities; threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification; removal of supervisory responsibilities; abusive verbal or physical behavior that is “reasonably likely to deter protected activity, even if it is not sufficiently ‘severe or pervasive’ to create a hostile work environment;” and taking a materially adverse action against a close family member of the employee.
With regard to causation, the guidance discusses the Supreme Court’s holdings that the standard of proof in anti-retaliation cases is that “but for” the employer’s retaliatory motive, the employer would not have taken the adverse action against the employee. However, with regard to federal employees, the guidance goes on to state that it will use a “motivating factor” standard in retaliation cases, prohibiting retaliation if it is merely a motivating factor behind the adverse action.
The guidance lists examples of facts and pieces of potential evidence that may support the finding of a causal link between protected activity and materially adverse action, including:
- Suspicious timing (i.e., that adverse action was taken soon after the employee filed a report or engaged in other protected activities);
- Oral or written statements by the employer that recommend or approve the adverse action;
- “Comparative evidence” that may reveal retaliatory intent by showing inconsistencies in employer reprimands, or that the employer makes pre-determined decisions with regard to some employees and not others;
- Inconsistent or shifting explanations for taking the adverse action;
- Other evidence that the employer’s explanation for taking the adverse action was pretextual.
Importantly, the guidance states that retaliation does not only occur when materially adverse action is taken against an employee who has engaged in protected activity, but also when an employee “may engage” in protected activity. Citing, in a footnote, to decisions from the Seventh and Tenth Circuits, the guidance notes that “the doctrine of anticipatory retaliation (also called preemptive retaliation) prohibits an employer from threatening adverse action against an employee who has not yet engaged in protected activity for the purpose of discouraging him or her from doing so.” This broad interpretation should serve to put employers on alert to document and be able to prove that any decision made pertaining to an employee or prospective employee’s performance – e.g., hiring, evaluations, warnings, promotions, bonuses, raises, terminations, or references – was made without regard to whether the applicant or employee may be about to participate in an EEO process or oppose discrimination.
The guidance document concludes with some suggestions for employers to reduce the likelihood of retaliation violations. Those suggestions include:
- Maintaining a written, plain-language anti-retaliation policy with practical guidance and user-friendly examples;
- Training for all managers, supervisors, and employees on the employer’s written anti-retaliation policy;
- Anti-retaliation advice and individualized support for employees, managers, and supervisors when allegations of discrimination arise;
- Proactive follow-up to check in on employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation;
- Review of employment actions to ensure EEO compliance.
The attorneys at Chilivis Grubman work with businesses of all types and sizes in connection with employment-related litigation, including defending lawsuits brought under the FLSA, Title VII, or other employment-related statutes. For any questions, or if we can assist you in connection with such a matter, please contact us at (404) 262-6505 or sgrubman@cglawfirm.com.