For the first time in 18 years, the U.S. Equal Employment Opportunity Commission (EEOC) has issued revised guidance (the Guidance) regarding retaliation. The Guidance, which broadens and clarifies the definition of protected applicant/employee activities, became effective August 29, 2016. There have been seven U.S. Supreme Court decisions addressing retaliation since the EEOC’s last update in 1998. The Guidance accounts for expansions in the case law and Supreme Court guidance on this issue. (It also addresses when the EEOC believes you are interfering with an employee’s right to a reasonable accommodation under the ADA, but that is for another blog post.)

What Constitutes Protected Activity?

The first element of a retaliation claim is that the applicant/employee engaged in some protected activity. Protected activity includes participating in an EEO process or reasonably opposing conduct made unlawful by law. As noted in the Guidance, “[t]he plain terms of the participation clause prohibit retaliation against those who ‘participate in any manner in an investigation, proceeding, or hearing’ under the statute.” 42 U.S.C. 2000e-3(a).

An employee engages in protected activity when he or she participates in an EEO process—makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. The Guidance explains that the “Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the allegations are, or could become, unlawful conduct.” So, although the complaint itself may not be valid, the protection from retaliation still attaches to it. Additionally, the Guidance explains that the participation clause should not be limited to administrative charges or lawsuits filed to enforce EEO rights– it also encompasses an employer’s internal EEO complaint process.

Protected activity also includes an applicant/employee’s opposition to unlawful conduct. Therefore, an employer must not punish an applicant/employee for voicing or otherwise communicating opposition to a perceived EEO violation. This protection, unlike the participation clause, is limited to employees/applicants who act with reasonable good faith and believe that the conduct they oppose is actually unlawful. According to the EEOC, it may be reasonable for an applicant/employee to complain about behavior that has not yet risen to the level of severe or pervasive (but could) as well as behavior that the EEOC considers unlawful, even if some courts disagree with that interpretation (e.g., discrimination based on sexual orientation or gender identity).

The Guidance cites the Supreme Court’s 2009 holding in Crawford v. Metropolitan Government of Nashville and Davidson County, in which the Court explained that workers who complain about unlawful employment practices and workers who reveal unlawful employment practices when they are questioned by an internal company investigator are both protected from retaliation. Referencing the Crawford opinion, the Guidance explains that opposing discriminatory practices has an “expansive definition.” The Guidance also acknowledges that the same activity may qualify as protected under both the participation clause and opposition clause.

A Materially Adverse Action is not the same as an Adverse Employment Action

The Guidance reiterates the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White and states clearly that adverse actions for retaliation purposes are broader than adverse actions for a Title VII violation. To trigger the retaliation protection, the action need only deter a reasonable employee from complaining about discrimination. The EEOC’s non-exhaustive list of potentially materially adverse actions include:

  • Disparaging the person to others (like coworkers) or in the media;
  • Threatening reassignment;
  • Engaging in abusive verbal or physical behavior that may not be sufficiently severe or pervasive to qualify as illegal harassment; and
  • Threatening to take action against close family.

So, just because the action doesn’t affect pay or benefits, it could still qualify as retaliation. The Guidance warns there are no bright line rules for defining potentially material adverse actions.

For Non-Federal Employers, the Employee Still Has to Prove “But-For” Causation

The Guidance acknowledges the Supreme Court’s “but-for” causation standard from University of Texas Southwest Medical Center v. Nasser, but points out that “but-for” does not mean “sole cause.” According to the EEOC, retaliation is a “but-for” cause if it was the straw that broke the camel’s back—even if there were other motivating factors. Evidence of retaliation could include suspicious timing, oral or written statements from decision makers, the different application of rules to the complaining party, or inconsistent or shifting explanations. Facts the EEOC cites that may defeat a claim of retaliation are more limited—the employer didn’t know about the protected activity or it had a legitimate and nonretaliatory reason for the decision.

Recommended Best Practices

Don’t despair—although almost anything could be deemed protected activity or retaliation, the Guidance lists a number of “Promising Practices” you can follow. Hopefully, you are already following some or all of them, but here they are:

  1. A Written Nonretaliation Policy. The EEOC wants you to have a separate policy with examples of what not to do and proactive steps to avoid actual or perceived retaliation. If all of your EEO policies mention retaliation, you are probably okay but make sure this is clear in your policy.
  2. Train Employees and Supervisors. You should make sure all of your folks know that retaliation is against your policy and the law. Include a separate retaliation section in your annual EEO/harassment training.
  3. What to Do When a Complaint is Filed. Reassure the employee and any witnesses that you will not tolerate any retaliation and how they can report any retaliation they think is occurring. Also, you should provide tips to the managers about avoiding even the appearance of retaliation.
  4. Proactive Follow Up After a Complaint. Check in with the complaining party and the manager to see how it is going and address problems as or before they arise.
  5. Review of Employment Actions to Ensure EEO Compliance. HR should be a little more involved with any performance evaluations, pay changes, assignment changes, etc. The manager still needs to supervise the complaining party and needs to know the best way to do it.

In light of the fact that retaliation claims have become the most common EEO claim, composing 44.5 percent of the charges the EEOC received in 2015, you should familiarize yourself with the updated guidance and begin putting these best practices in practice.