The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency’s last-issued guidance on the topic from 1998.  The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades.  The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on “Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention.”  The 30-day input period on the guidance ends on February 24, 2016.

In updating its guidance, the EEOC notes that the percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation filed with EEOC.  Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims.  In the federal sector, retaliation has been the most frequently alleged claim since 2008, and retaliation violations comprise 53 percent of all violations found in the federal sector in fiscal year 2015.

Notably, the new guidance sets forth the EEOC’s position on several unsettled points of law:

  1. Distinctions Between Participation in Protected Activity vs. Opposition to Perceived Discrimination: According to the EEOC, an individual can satisfy the participation clause irrespective of whether his or her underlying allegation of discrimination is reasonable, whereas the opposition clause only applies to those who object to practices they reasonably believe are unlawful.  Furthermore, contrary to the position taken by some federal courts, the EEOC deems “participation” to encompass internal complaints regardless of whether they were made in connection with a formal charge filed with the EEOC or other state or local equivalent.
  2. Rejection of the “Manager Rule”: The guidance makes clear that the EEOC and U.S. DOL reject the “manager rule” adopted by some courts, which requires that managers must step outside their management role and assume a position adverse to the employer in order to engage in protected activity.  The EEOC reasons that the “manager rule” “discourages supervisory employees from fulfilling their duty to report harassment and participate in internal investigations because it leaves them unprotected from retaliation.”  Thus, in the EEOC’s view, anti-retaliation provisions in EEO laws should protect all employees- even managers, human resource personnel or other EEO advisors- and the proper focus in analyzing whether an individual has engaged in protected activity should be on the oppositional nature of the employee’s complaints or criticisms, not his or her job duties.
  3. Compensation-Related Communications: While it is clear that under the National Labor Relations Act an employee’s discussions about compensation constitute protected activity, the new guidance confirms that such conversations may also amount to protected activity under EEO laws. For example, if an employee expresses her belief that the discrepancy between her pay and that of a similarly situated male co-worker is the result of bias, that would be protected activity under EEO laws.
  4. Adverse Action: The EEOC also takes an expansive view of actions that it deems materially adverse, relying, in part on the “broad reasoning and examples provided by the U.S. Supreme Court” in Burlington Northern and Santa Fe Railway Co. v. White.  The following actions are examples of materially adverse actions:  disparaging a person in media; making false reports to government authorities; threatening reassignment; scrutinizing work more closely without justification; giving inaccurately lowered performance appraisal or job reference; removal of supervisory responsibilities; abusive verbal or physical behavior; requiring re-verification of work status, and threatening deportation or initiating other action with the immigration authorities.
  5. Causation Established Through “Mosaic” Evidence: To establish causation in a Title VII retaliation case, a plaintiff must show that an employer would not have taken an adverse action “but for” the plaintiff’s protected activity.  Following appellate court decisions that have held plaintiffs can demonstrate a causal connection between protected activity and the adverse action by pointing to “a convincing mosaic” of circumstantial evidence to support an inference of retaliatory animus, the EEOC states that a “charging party may cite different pieces of evidence which, in combination, are sufficient to allow an inference of retaliatory intent.  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 may be drawn.”

The guidance also contains several recommended best practices for employers, including:

  • Issuing a written, plain language anti-retaliation policy with examples of retaliation that may not be obvious to supervisors, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for concerns about retaliation, a mechanism for informal resolution, and an explanation that retaliation can subject an employee to discipline up to and including termination.
  • Providing training on the employer’s written anti-retaliation policy for all managers, supervisors, and employees, as well as for those working in a range of workplace settings, including for example employees and supervisors in lower-wage manufacturing and service industries, manual laborers, and farm workers.  Additionally, offering explicit instruction on alternative pro-active, EEO-compliant ways these situations could have been handled.
  • Providing anti-retaliation advice and individualized support for employees, managers and supervisors, such as by informing all parties and witnesses to an EEO investigation of the employer’s anti-retaliation policy, and offering guidance to managers and supervisors on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
  • Being proactive in following up with employees, managers and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation.
  • Reviewing consequential employment actions to ensure EEO compliance, as well as requiring decision-makers to “know, understand, and easily identify” their reasons for taking consequential actions, and ensuring that necessary documentation supports the decision.

With the rapid rise of retaliation claims and the EEOC’s expansive views on the elements of these charges, employers should take advantage of these insights into the EEOC’s position and consider their recommended practices.