On January 21, 2016, the U.S. Equal Employment Opportunity Commission (“Commission” or “EEOC”) released proposed guidance to update and clarify its position on retaliation and related issues under EEOC-enforced laws, including these key points: (1) retaliation must be the “but for” cause of an employer action to be unlawful; (2) a complaint may be oral or written to be protected activity; (3) “third party” retaliation, whereby the employer takes action against an employee for another’s protected activity, is unlawful; and (4) that both protected activity and unlawful retaliation actions are to be broadly interpreted. The public has 30 days to provide feedback. 

Federal employment discrimination laws make it illegal to fire, demote, harass, or otherwise “retaliate” against applicants or employees because they complained to their employer about, or otherwise objected to, discrimination on the job (traditionally defined as the “opposition clause”), or filed a charge of discrimination with the EEOC or participated in an employment discrimination proceeding (such as an investigation or lawsuit) (traditionally defined as the “participation clause”).  Thus, actionable retaliation occurs when an employer unlawfully takes action against an individual in punishment for exercising rights protected by any of the federal employment discrimination laws. The anti-retaliation provisions of these laws apply to ensure that individuals are free to raise complaints or engage in other protected activity without retribution or punishment.

The new guidance updates and replaces the EEOC’s retaliation guidance issued in 1998.  The 2016 guidance updates the prior guidance by, inter alia, including interpretation and application of Supreme Court and lower court decisions issued since 1998, including:

• University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (requiring strict “but-for” causation standard for Title VII retaliation claims and rejecting the more liberal “motivating factor” standard);
• Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (ruling, for purposes of the anti-retaliation provision of the Fair Labor Standards Act, a complaint can be either oral or written);
• Thompson v. North American Stainless, LP, 562 U.S. 170 (2011) (finding Title VII provides cause of action to employee who was allegedly discharged in retaliation for fiancée’s protected activity, i.e., “third party retaliation”); and
• Burlington Northern and Santa Fe Railway v. White, 548 U.S. 53 (2006) (holding Title VII’s anti-retaliation provision is not limited to discriminatory actions affecting term, condition, or privilege of employment and, thus, is broader than Title VII’s discrimination provision).In addition, the 2016 guidance defines retaliation, discusses the various federal employment discrimination laws, outlines the elements of a retaliation claim (including what activities constitute protected activity, adverse action, and causal connection), and discusses available remedies for unlawful conduct.  Notably, in defining protected activity, the Commission takes an expansive view of what it means to “participate” in an investigation, proceeding, hearing, or litigation under federal employment discrimination laws.  Breaking with many federal appellate courts, the Commission states its view that “participation” encompasses internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency. Finally, the Commission offers the following as examples of employer best practices:
• Maintain a written, plain language anti-retaliation policy;
• Train all managers, supervisors and employees on the employer’s anti-retaliation policy; and
• Review consequential employment actions to ensure EEO compliance.

The guidance will serve as a reference for how the Commission processes and investigates charges alleging retaliation, makes cause determinations, and considers litigation.  The draft guidance is available for review here. Stay tuned for updates concerning the finalized guidance.