For the first time, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance this week in the form of a “Dear Colleague Letter” that specifically addresses retaliation. Like complaints filed with the Equal Employment Opportunity Commission and other administrative agencies, the OCR’s guidance highlights the fact that “a significant portion of the complaints filed with OCR in recent years have included retaliation claims.” Just as is the case with Title VII and other civil rights laws that apply to employment and in other contexts, retaliation claims in the OCR context appear to be on the rise. In addition, the U.S. Supreme Court heard argument this week in University of Texas Southwestern Medical Ctr. v. Nassar, a case in which the Supreme Court will be deciding whether retaliation claims under Title VII of the Civil Rights Act should be decided using a “mixed motive” standard (such that an employer can be liable if retaliation was a motivating factor underlying an adverse decision) or a “but for” standard (such that an employer can be held liable only if retaliation was the decisive factor in taking an adverse action). The Nassar case is one that has received a lot of attention from various higher education associations and organizations, including the American Council on Education (which favors the “but for” standard) and the American Association of University Professors (which favors the “mixed motive” standard). The Nassar case is one of many indications that retaliation is a topic that is attracting a lot of attention.
The OCR’s Dear Colleague Letter serves as a reminder for all educational institutions, including K-12 schools and higher education institutions, that retaliation is prohibited under the laws enforced by OCR (e.g., Title VI of the Civil Rights Act, the Rehabilitation Act, and the Age Discrimination Act). This anti-retaliation mandate protects individuals who come forward with complaints or concerns about conduct that could violate these laws. It also protects individuals who testify or otherwise participate in any manner in an internal proceeding or in an OCR investigation or proceeding. The OCR cites as examples of prohibited retaliatory conduct “intimidating, threatening, coercing, or in any way discriminating against [an] individual . . . because of the individual’s complaint or participation.” The Dear Colleague Letter stresses that the OCR “will continue to vigorously enforce this prohibition against retaliation.”
The OCR also notes that, if it finds that a covered educational institution has engaged in retaliation, the OCR will follow its usual enforcement practices of seeking to secure the institution’s voluntary compliance through a resolution agreement that would require the institution to take certain specified remedial measures to address the noncompliance. Under such an agreement, it is up to the OCR to determine what remedies, including monetary relief, are appropriate based upon the facts at issue.
The Dear Colleague Letter identifies the following as examples of the steps that the OCR could require an institution to take to address a retaliation finding and to ensure compliance in the future:
training for employees about the prohibition against retaliation and ways to avoid engaging in retaliation;
adopting a communications strategy for ensuring that information concerning retaliation is continually being conveyed to employees, which may include incorporating the prohibition against retaliation into relevant policies and procedures; and
implementing a public outreach strategy to reassure the public that the recipient is committed to complying with the prohibition against retaliation.
As is the case with other violations of the laws that OCR enforces, if an institution refuses to comply voluntarily after a finding of retaliation, OCR will take appropriate enforcement action, which could include initiating administrative proceedings to suspend, terminate, or refuse to grant or continue the financial assistance available through the Department of Education or referring the case to the U.S. Department of Justice for further judicial action.
The OCR’s guidance regarding retaliation serves as an important reminder that all educational institutions that receive federal financial assistance must continue to be vigilant about prohibiting and addressing retaliation. Schools should take this opportunity to ensure that they have strong policies that prohibit retaliation, as well as all forms of prohibited discrimination and harassment. Once an individual comes forward with an internal complaint of discrimination, harassment, or retaliation; files an OCR complaint (or lawsuit); or participates in an internal or OCR proceeding (or lawsuit) relating to such a complaint, that individual cannot be retaliated against as a result of that protected activity. As with internal complaints of discrimination and harassment, internal complaints of retaliation should also be thoroughly investigated in a prompt and equitable manner.