September 27, 2016

Understanding retaliation and implementing practices and procedures to address these claims is an important issue for employers. Allegations of retaliation are now the most frequently alleged civil rights claims, comprising nearly forty-five percent of all charges received by the Equal Employment Opportunity Commission (EEOC).

On August 29, 2016, the EEOC released its long awaited Enforcement Guidance on Retaliation and Related Issues (Guidance). The new Guidance replaces the section on retaliation contained in the EEOC's 1998 Compliance Manual and is intended to provide a comprehensive overview of retaliation in light of increased filings and key United States Supreme Court decisions.

The Guidance provides a detailed overview of the EEOC's position regarding retaliation, including numerous examples of potential scenarios. A summary of the Guidance is included below.

There are six statutes under which an employee may bring a retaliation claim:

  1. Title VII of the Civil Rights Act of 1964 (Title VII),
  2. the Age Discrimination in Employment Act (ADEA),
  3. Title V of the Americans with Disabilities Act (ADA),
  4. Section 501 of the Rehabilitation Act (Section 501),
  5. the Equal Pay Act (EPA), and
  6. Title II of the Genetic Information Nondiscrimination Act (GINA).

Retaliation occurs when an employer takes a materially adverse action against an individual because that person engaged, or may engage, in a protected activity.

Protected Activity. Protected activity consists of either an employee's participation in an EEO process or opposition to discrimination.

  • "Participation" includes activities such as making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under one of the six EEO statutes listed above.
  • "Opposition" consists of "opposing any practice made unlawful under the EEO laws" and encompasses numerous ways "an individual may communicate explicitly or implicitly opposition to perceived employment discrimination." Opposition must be conducted in a reasonable manner and the employee must have a reasonable good faith belief that the opposed practice is unlawful or could become unlawful. This does not mean that an opposed practice must be actually unlawful for a retaliation claim to succeed, only that an individual must have had a good faith, reasonable belief that it was unlawful.

The Guidance provides detailed information regarding who engages in protected activity. Anyone who participates in an EEO process, whether as a complainant, representative, or witness, is engaged in protected activity, regardless of their job duties or status. Even a person who did not actually engage in protected activity, but whose employer thinks engaged in protected activity, is protected from retaliation. Retaliation against third parties is also prohibited.

The Guidance lists activities constituting "opposition," including:

  • complaining or threatening to complain about alleged discrimination against oneself or others;
  • providing information in an employer's internal investigation of an EEO matter;
  • refusing to obey an order reasonably believed to be discriminatory;
  • advising an employer on EEO compliance;
  • resisting sexual advances or intervening to protect others;
  • passive resistance (allowing others to express opposition); and
  • requesting reasonable accommodation for disability or religion.

Additionally, discussions or inquiries regarding wages may be protected activity.

Materially Adverse Action. An action is materially adverse if it "might well deter a reasonable person from engaging in protected activity." Common examples of materially adverse actions include denying an employee a promotion or benefits, or demoting, suspending, or discharging an employee. Other examples include threats, warnings, negative evaluations, transfers, or any type of adverse treatment that may deter a reasonable person from engaging in protected activity. It can even be an activity that causes harm solely outside the workplace. However, the definition of what constitutes a materially adverse action is fact-specific and there are no hard and fast rules to follow in evaluating these actions.

Causation. A private employer's or state and local government's action is retaliation when there is evidence showing that the employer would not have engaged in the materially adverse action "but for" a retaliatory motive. The Guidance describes the "but for" cause as "the straw that broke the camel's back."

Best Practices for Employers. The EEOC advises all employers to engage in the following practices to lessen the risk of retaliation in the workplace:

  • Maintain written anti-retaliation policies in plain language that communicate and provide guidance on the employer's expectations. These policies are most helpful when they include common examples of retaliation, identify steps that managers and supervisors can take to avoid retaliation, and outline a procedure for employees who are concerned about retaliation. The policies should clearly explain the consequences for engaging in retaliation, up to and including termination.
  • Train all employees on anti-retaliation policies.
  • Automatically provide information to all individuals regarding anti-retaliation policies following any EEO allegation.
  • Check in with all parties during a pending EEO matter to see if anyone has concerns regarding retaliation and to provide guidance.
  • Require supervisors and managers to articulate legitimate, non-retaliatory reasons for consequential employment actions and maintain supporting documentation.

The continued rise of retaliation claims makes it crucial for employers to understand anti-retaliation laws. Being proactive in eradicating retaliation from the workplace can greatly lessen the likelihood of facing a lawsuit. If you would like assistance in creating, implementing, or revising policies and procedures concerning retaliation or related issues, please feel free to contact Ahlers & Cooney, P.C. for more information.

This Client Alert is intended to give a brief overview of the EEOC's Guidance. It is not a comprehensive analysis of all issues contained in the Guidance, nor is it exhaustive of all issues related to retaliation. To access the EEOC's Guidance, along with accompanying materials, follow these links: Guidance, Small Business Fact Sheet, Question and Answer.

If you have any questions about addressing retaliation issues, please contact us.

Ahlers & Cooney Labor & Employment Practice Group

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