This installment of our ongoing series on federal regulatory actions impacting employers examines the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues.

The proposed update would replace the 1998 version of the EEOC Compliance Manual on Retaliation and address the courts’ significant rulings in the decades following the current Manual’s publication. This Manual is particularly significant as the percentage of EEOC charges alleging retaliation has virtually doubled since 1998. Today, retaliation is the most frequently alleged basis of discrimination. 

What is Retaliation?

According to the EEOC, “[r]etaliation occurs when an employer unlawfully takes action against an individual in retribution for exercising rights protected by the EEO laws.” These laws include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, section 505 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act.

To successfully prove a retaliation claim, a plaintiff must prove that: (1) the employee was engaged in a “protected activity”; (2) the employer took an adverse action; and (3) there is a causal connection between the protected activity and the adverse action.

EEOC’s Proposed Guidance

Much of the proposed guidance summarizes the EEOC’s position on the legal elements of a claim for retaliation and provides opinions on how the agency and courts should answer unresolved legal questions.

  • Establishing Causation Through “Mosaic” Evidence. To establish causation in an EEO claim, the employee must show that the employer took the adverse action because the employee was engaging in the protected activity. The EEOC supports a “mosaic evidence” approach: permitting an employee to discredit the employer’s proffered explanation for its decision and establishing a causal connection between the protected activity and the adverse action by using a “convincing mosaic” of circumstantial evidence. The EEOC notes that the “pieces of the mosaic” may include “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.”
  • Protecting Managers for Acts Taken on Behalf of the Company. The EEOC rejects the “manager rule” – adopted by some circuits – which requires that managers must “step outside” their management role and assume a position adverse to the employer to engage in protected activity.  In rejecting the rule, the EEOC argues 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.”
  • Asking for a Raise is Protected. The EEOC opines that adverse employment action against employees for protected activity related to discussing their compensation can give rise to a claim for retaliation.  The EEOC provides that “when an employee communicates to management or co-workers to complain or ask about compensation, or otherwise discuss rates of pay, the communication may constitute protected opposition under the EEO laws, making employer retaliation actionable based upon the facts of a given case.”

The last section of the proposed guidance provides some best practices for employers. The EEOC suggests that employers take the following measures to ensure that they are EEO compliant:

  • Maintain a written anti-retaliation policy that includes examples of retaliation, steps to avoid actual or perceived retaliation, a reporting mechanism for employee concerns, and a warning that retaliation can be subject to discipline, including termination
  • Provide training to managers, supervisors, and employees on the employers’ anti-retaliation policy
  • Provide anti-retaliation advice and support for employees, managers, and supervisors
  • Follow up with employees, managers, and supervisors while the EEOC matter is pending
  • Review any important employment actions to ensure EEO compliance

What Comes Next?

The EEOC will accept comments on the proposed guidance through February 24. After the EEOC reviews and considers the input, the EEOC Commissioner will consider any revisions to the draft guidance before it is finalized.