Recently, the U.S. Equal Employment Opportunity Commission (EEOC) replaced its 1998 Compliance Manual section on retaliation, issuing its final Enforcement Guidance on Retaliation and Related Issues ("the Guidance"). The Guidance reflects the EEOC’s consideration of feedback received from approximately 60 organizations and individuals.
Almost 45% of EEOC Charges include a claim for retaliation, more than any other basis of alleged discrimination. The EEOC generated the Guidance with the stated intention of reducing the likelihood of retaliation.
The Guidance summarizes relevant retaliation provisions under each statute the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA). In conjunction with the Guidance, the EEOC issued a Questions-and-Answers reference guide and a Small Business Fact Sheet to provide an overview.
The Guidance illustrates the EEOC’s broad interpretation of the protections afforded to employees engaging in protected activity. To prove a retaliation claim, an employee must show (1) he/she was engaged in protected activity, (2) the employer took a materially adverse action against them, and (3) there is causal connection between the protected activity and the materially adverse action. Employers should note the new expansive definitions of these elements in the Guidance:
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The EEOC highlights the broad interpretation of “protected activity.” Actions protected from retaliation include: taking part in an internal or external investigation of employment discrimination; filing or being a witness in a Charge, complaint, or lawsuit; communicating with a supervisor or manager about employment discrimination; refusing to follow orders that would result in discrimination; or even asking managers or coworkers about salary information to uncover potentially discriminatory wages.
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The EEOC provides an expanded definition of “adverse action” to include activity that could be reasonably likely to deter protected activity even in the absence of a concrete effect on a person’s employment.
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The Guidance promotes a more lenient causation standard. Quoting language from a Seventh Circuit Court of Appeals decision, the EEOC notes a causal connection may be established by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent.
In response to the Guidance, employers should review the EEOC’s recommended practices to avoid future retaliation claims. These include requiring decision makers to identify their reasons for taking actions, and ensuring there is well drafted documentation to support the decision; scrutinizing performance assessments to ensure they have a sound factual basis and are free from unlawful motivation, and emphasizing the need for consistency; identifying and implementing any process changes where retaliation is found to have occurred; and implementing responsive training or oversight.
