Retaliation According to the EEOC

the situation

Retaliation claims continue to be a favorite of employees and are the most frequently alleged bases for discrimination.  Employers should be aware of the ever present risks of such claims.  So what is the EEOC’s take on what constitutes retaliation?

the ruling

On August 29, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues (found here).  This guidance was issued to replace the EEOC’s Compliance Manual section on retaliation.  The EEOC published its proposed guidance back in January of 2016 and then received public comment.  According to the EEOC, the final guidance reflects the EEOC’s consideration of feedback from about sixty organizations and individuals representing a wide range of viewpoints and some views expressed at an EEOC meeting on the topic in June of 2015.

In connection with the issuance of the final guidance, the EEOC has also issued a question and answer publication (found here).  Below are some of the highlights.

The EEOC explains that engaging in a protected activity can mean either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.  And participation in the process is protected “whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred.”  The EEOC points out that does not mean that allegations made in bad faith are not without consequence and that an employer is “free to bring those to light” in the EEO matter, but cannot directly impose consequences for participating in the EEO matter.
On the other hand, the protection for opposing conduct made unlawful by an EEO law is limited to those who act with a reasonable good faith belief that the conduct opposed is lawful or could become lawful if repeated.  This would even include conduct that courts have determined not to be in violation of EEO laws, as long as the EEOC has adopted the interpretation that is a violation.

Retaliation is based on a claim that a materially adverse action was taken against the employee.  A materially adverse action is any action that might deter a reasonable person from engaging in protected activity.  The EEOC takes the position that this action does not have to be related to the workplace at all, explaining that this can be action that is work-related or “one that has no tangible effect on employment, or even an action that takes place exclusively outside of work”—just as long as it would reasonably dissuade a person from engaging in protected activity.
The EEOC also now provides some examples of “materially adverse actions,” including work-related threats, warnings or reprimands, negative or lowered evaluations, transfers to less prestigious or desirable work or work locations, making false reports to government authorities or the media, filing a civil action, threatening reassignment or scrutinizing attendance more closely than others, removing supervisory responsibilities, engaging in abusive verbal or physical behavior, requiring re-verification of work status or taking some action related to immigration status, terminating a union grievance process, or taking or threatening to take a materially adverse action against a close family member.

Additionally, the EEOC now takes the position that it even if the alleged materially adverse action did not stop the employee from asserting his or her protected rights, it could still serve as the basis for the retaliation (but just might affect the damages the employee might receive).

the point

Most employers are already tuned in to the hazards of a retaliation claim—which are potentially only expanded by virtue of this new guidance. Although courts may not agree with the EEOC’s position on some of these issues, this final guidance does provide employees with some additional ammunition when pursuing retaliation claims.