This is the final installment of my analysis of the EEOC’s recently issued proposed Enforcement Guidance on Retaliation and Related Issues. Here are Part One (“You gotta be protected!”) and Part Two (“Was your employment action ‘adverse’?”).
For an employee to have a valid retaliation claim, it’s not enough that she engaged in legally protected activity or that the employer took some type of adverse action against her. The employee has to prove that the employer took the adverse action because of the protected activity.
Put another way, an employee can’t immunize herself from discipline or discharge (or other negative job consequences) simply by making a complaint of harassment or filing an EEOC charge.
In legalese, there has to be a “causal connection” between the protected activity and the adverse employment action. If there’s a causal connection, the employee wins. If there isn’t, the employer wins.
8-QUESTION CHECKLIST FOR EMPLOYERS
Based on the EEOC’s proposed Enforcement Guidance, here are eight questions an employer should ask itself before it disciplines, fires, lays off, denies a raise or promotion to, or takes any other adverse action against a “protected employee”:
No. 1: How long ago did the protected activity occur? Fresh is bad; old and stale is good. The old age of the protected activity is not a guarantee that an employer will be ok because some employers have long memories and are vindictive. (And the mere fact that the adverse action took place soon after the protected activity — “temporal proximity” — doesn’t guarantee a victory for the plaintiff, either.) But from the employer’s standpoint, if the protected activity took place a long time ago, the chances are much better that the employee will not be able to establish a “causal connection.”
No. 2: Who is recommending the adverse action? Is it the same supervisor who was accused of racism in the employee’s EEOC charge? Or is it someone who had nothing to do with it? If the action is being recommended by someone who was named or implicated in a charge or complaint, it’s a good idea to assign someone else to independently investigate and make a decision about what should be done. That way, there will be less risk of a tainted decision.
No. 3: How airtight is your ground for the adverse action? Is it cut-and-dried, like attendance (good), or is it murkier, like job performance, or “leadership,” or “not aligned with the company’s needs going forward”? (Not impossible, but tough.) Even though the murkier reasons are legitimate, adverse actions based on them will be harder to defend.
No. 4: How have you treated other employees with the same job-related issue? Treating a protected employee more harshly than you treated other employees who committed the same offense (or had similar performance issues) is a huge red flag for the EEOC. If you are more harsh with the protected employee, you’d better have a very good, well-documented, legitimate explanation that is not related to the protected activity.
No. 5: Is there so much “smoke” of a retaliatory motive that someone could argue there’s “fire,” too? The U.S. Court of Appeals for the Seventh Circuit says retaliation may be proven by what the court calls a “convincing mosaic” of circumstantial evidence, and the EEOC plans to adopt this position, too. I like to think of it as “where there’s smoke, there’s fire.” So watch out for the little things that add up, like suspicious timing, increased criticisms of work performance, complaints about the fact that a complaint has been made, and forgetting to invite the protected employee out for drinks with the rest of the gang. Even though these may not be enough in themselves, at some point they may reach a critical mass, and presto! you have a causal connection.
No. 6: While we’re on the subject of complaining, have the members of management implicated in the complaints or charges indicated they were upset about the accusations? Of course they have. Therefore, be that much more careful before you take any action against the protected employee.
No. 7: Is there anything else about this decision that gives you a bad feeling? If you’re a lawyer or an HR professional, and you get a bad feeling about a proposed employment decision, trust your instincts. We tend to be risk-averse, but someday they’ll thank us.
No. 8: Related to No. 7, have you consulted with your employment counsel before taking action?
VALENTINE’S WEEKEND BONUS: The EEOC includes some recommended retaliation “Best Practices” for employers, all of which I agree with. The recommendations are basically (1) have a plain-English policy prohibiting retaliation, (2) train employees at all levels about retaliation, (3) provide “individualized support” to supervisors and managers who have been accused of discrimination or harassment, (4) periodically follow up with individuals who have made complaints or filed charges to see whether they feel that they’re being retaliated against (and if they do, act on it), and (5) have someone in a high-level HR, legal, or executive role review major employment decisions involving protected employees to ensure that no retaliatory motives have crept into the decision.