On June 17, 2015, the EEOC held a public hearing entitled Retaliation in the Workplace: Causes, Remedies and Strategies for Prevention. Various EEO experts, both from within the Commission and outside, were invited to speak in person or present written comments on the serious problem of retaliation charges that were being filed with increased frequency. In general, the percentage of retaliation charges (under all statutes) directly or as a secondary allegation over the past 10 years has jumped from 29.5% of all charges filed in FY 2005 to 42.8% of all charges filed in FY 2014. In FY 2014 retaliation charges were the most commonly-filed charge, exceeding race (35%) and sex (29.3%).

The following table shows, perhaps more clearly, the steady growth of retaliation charges and the results of the EEOC’s processing of such charges over the last four years.

Click here to view table.

Perhaps one redeeming statistic which the table shows is that although the percentage of Retaliation charges has steadily increased over the last four years, the percentage of No Reasonable Cause determinations has remained about the same, between 62.7% and 64.4%. Also the statistics indicate that Charging Parties are not reaping higher benefits from filing retaliation charges; the average amount obtained per merit resolution  has actually decreased during the last three years from a high of $24,152 in FY 2013 to $22,102 in FY 2014.

According to Raymond Peeler, Senior Attorney-Advisor in the EEOC’s Office of Legal Counsel, who was a participant in the EEOC’s hearing on June 17th, there were several reasons why the EEOC needed to address the surge in retaliation charges namely because, as he put it: (1) retaliation is the linchpin for all civil rights enforcement - if employees fear the repercussions  of filing a charge or complaint, then their rights are unlikely to  be  enforced;  (2)  there  have  been  seven  Supreme Court decisions about retaliation since the EEOC’s Compliance Manual was adopted in 1998, and (3) several new and important issues have arisen in the lower courts about this issue. Peeler suggested that these were matters of great concern to the Commission.

As with most complicated matters there probably is no single reason for the surge in retaliation charges. However, one could point to several notable Supreme Court cases where the perimeters of retaliation in the context of employment laws have been widened in favor of Plaintiffs. For example, in Burlington Northern and Santa Fe Railway Co. v. White, the Supreme Court held that the scope of “adverse action” under retaliation goes beyond concrete decisions (like termination or lowering pay) and includes actions which “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” even if they don’t affect the employee’s paycheck. In the case of Crawford v. Metropolitan Government of Nashville and Davidson County, the court widened the “opposition clause” under Title VII by holding that the clause extends protection to an employee who speaks out about discrimination when asked during the course of an internal investigation even though that employee may not have otherwise openly opposed the discrimination in question. In the 1997 case of Robinson v. Shell Oil, the Supreme Court held that former employees who received a negative reference because of complaining of discrimination may be protected under the anti-retaliation provisions of the law. In Thompson v. North American Stainless, the Supreme Court again widened the class of protected individuals to those closely-associated with the complaining individual (in that case, Thompson’s fiancée and co-worker complained of discrimination, resulting, Thompson alleged in his termination). Thus, it could be said that these holdings made it easier for an employee to allege and sustain a charge of retaliation.

These results have been tempered by the 2013 decision of the Supreme Court in the case of University of Texas Southwestern Medical Center v. Nassar considerably tightened proof of retaliation in the employer’s favor. The Court held that although some Title VII claims could be pursued under either a “but for” or a “motivating factor” analysis, a Plaintiff under Title VII would be required to  prove that retaliation was the “but for” cause of any adverse action.

Thus, although the process has become more complicated because of current case law developments, the best way for an employer to avoid a retaliation charge is still to provide the right kind of direct, meaningful training to supervisors who interact on a daily basis with its employees. The EEOC is concerned about retaliation and its statistics show that it finds “no cause” on average on over 60% of the retaliation charges filed. Employers should be concerned also and make sure their policies and practices keep them in that 60% group.

EEO TIP: In general, retaliation occurs when an employer unlawfully takes action against an individual as punishment for exercising his or her rights under the Federal EEO laws including Title VII, ADA, ADEA, FMLA, Equal Pay Act, and the Rehabilitation Act. However, it should be noted that in addition to these employment- oriented laws, there are approximately fifteen other federal statutes—and dozens of state statutes—which contain anti-retaliation provisions that employers should be aware of. All of them have similar provisions as to the specific persons who are protected thereunder, limitations as to the kind of acts protected, and remedies or damages available to a complainant.