New EEOC Guidance on Retaliation

We posted a few days ago about the EEOC’s new guidance on Position Statements.  Well, the EEOC has been busy because they also have proposed new enforcement guidance regarding retaliation claims and charges.  From January 21, 2016 through February 24, 2016, the EEOC accepted input regarding its draft proposed enforcement guidance on retaliation claims.  The EEOC believes the updated enforcement guidance is necessary since nearly 43% of all private sector charges filed in 2014 included retaliation claims.  While the enforcement guidance is not binding law, employers should be aware of it since it is used by the agency in investigations and courts will sometimes look to it for guidance.

Here is a general rundown of a few major parts of the proposed new guidance:

  1.  The guidance expands the “participation” clause to protect internal complaints.  Most federal courts have held that the participation clause protects from retaliation an individual involved in some way with an EEOC proceeding (i.e. making a charge, testifying in a charge, participating in an investigation).  The EEOC guidance would include internal complaints.  This is significant because the EEOC takes the position that the participation clause applies even to unreasonable allegations of discrimination (as opposed to those the employee reasonably believes are unlawful).
  2. The guidance takes a very expansive view of what constitutes an adverse action for retaliation purposes.  Specifically, adverse action could include, among other things, (1) disbarring the employee to others or in the media, (2) making false reports to government agencies, (3) threatening reassignment, (4) scrutinizing the employee’s work more closely, (5) removing supervisory responsibilities, (6) engaging in abusive verbal or physical behavior even if it does not rise to the level of a hostile work environment, or (7) taking “any other action that might well deter reasonable individuals from engaging in protected activity.”  Under this guidance, there is far greater weight given to an employee’s subjective belief.
  3. The guidance loosens the “but for” standard of causation in retaliation claims.  The U.S. Supreme Court has ruled that in retaliation cases, a plaintiff employee must show that the employer would not have taken the adverse action at issue “but for” a retaliatory motive.  This typically involves the employee showing that the employer knew about the protected activity of the employee and that the adverse employment action occurred very soon thereafter as a result of the protected activity (a direct cause and effect).  The EEOC guidance, however, states that an employee can establish “but for” causation by presenting a “convincing mosaic of circumstantial evidence that would support the inference of retaliatory animus.”  This is a very broad and vague standard through which employees can combine pieces of evidence that are otherwise individually insufficient and thereby satisfy the standard.

What does this mean for employers?  It means you must be more diligent and careful.  First and foremost, review your policies and update them to include strict anti-retaliation provisions.  Also, train you managers and supervisors on anti-retaliation and employee management so you can avoid claims of retaliation.  Be consistent in your treatment of employees and document your reasons for action against employees.  The proposed guidance also has a “best practices” section at the end that we suggest you review and to the extent you are able, put in place at your workplace.

We will update you when this proposed guidance becomes official.

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