EEOC Proposes Updated Retaliation Guidance

The EEOC Proposes Updated Retaliation Guidance

In January, the Equal Employment Opportunity Commission (EEOC) proposed updated enforcement guidance regarding retaliation under federal employment discrimination laws. As with the agency’s other recent guidance, the EEOC takes a broad view of what types of employer conduct is prohibited.

Retaliation is already the most frequently filed claim with the EEOC, accounting for 43 percent of all private sector charges filed in fiscal year 2014. If the EEOC’s proposed guidance becomes final, employers should expect to see heightened enforcement.

As the EEOC notes, it has not updated its retaliation guidance in nearly two decades. In the meantime, the U.S. Supreme Court and federal courts have issued key rulings regarding retaliation.

“Retaliation is a persistent and widespread problem in the nation’s workplaces,” said EEOC Chair Jenny R. Yang. “Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws. The Commission’s request for public input on this proposed enforcement guidance will promote transparency. It will also strengthen EEOC’s ability to help employers prevent retaliation and to help employees understand their rights.”

The Anatomy of a Retaliation Claim

Retaliation occurs when an employer unlawfully takes action against an individual for exercising rights protected by federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In general, a retaliation claim has three elements:

• The individual either “participated” in EEO activity or otherwise “opposed” discrimination;
• The employer took adverse action; and
• A causal connection exists between the protected activity and the adverse action.

In its updated guidance, the EEOC adopts expansive definitions with regard to each of the above elements. It starts with the position that “[a] retaliation claim, whether based on participation or opposition, is not defeated merely because the underlying challenged practice ultimately is found to be lawful.” In terms of participation, the agency also advises 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.

With regard to causation, the EEOC incorporates the “convincing mosaic” standard into its guidance. According to the agency, it interprets the standard to mean that a charging party may cite different pieces of evidence which, in combination, are sufficient to allow an inference of retaliatory intent. As the guidance further explains:

The pieces of that ‘mosaic’ may include, for example, suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer’s proffered reason for the adverse action, or any other “bits and pieces” from which an inference of retaliatory intent might be drawn.

Finally, the EEOC proposes a broad definition of adverse action, defining it as “any action that might well deter a reasonable person from engaging in protected activity.” The guidance further states that “[a]n adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside work.” In addition, the EEOC advises that “[i]f the employer’s action would be reasonably likely to deter protected activity, it can be challenged as retaliation regardless of the level of harm.”

The proposed guidance is now open for public comment. We will be closely following its status and will provide updates as they become available.