The United States Equal Employment Opportunity Commission (EEOC) recently published annual statistics about charges it files on behalf of employees. A whopping 44.5% of these charges concern retaliation claims. Since 2009, retaliation charges have eclipsed race discrimination as the most common basis for filing a claim. On January 21, 2016, the EEOC updated its Compliance Manual concerning retaliation claims for the first time since 1998. While not finalized, the guidelines provide insight into what the EEOC deems to be unlawful retaliation, as well as best practices employers may implement in order to avoid a charge of retaliation.

Retaliation claims typically contain three distinctive elements:

  • Employee engagement in protected activity – either participating in equal employment opportunity (EEO) activity or opposing a practice made unlawful by one of the employment discrimination statutes;
  • Adverse action taken by the employer; and
  • A causal connection between the protected activity and the adverse action.

The anti-retaliation provisions make it unlawful to discriminate against any individual because he or she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under Title VII, the ADEA, the EPA, the ADA, or GINA. An employee does not have to oppose any employer conduct in order to be engaged in protected activity. Employees who voluntarily participate in employer investigation into EEO allegations, or even provide neutral or pro-employer information about an alleged violation, or request accommodation of a disability or religious practices can be engaged in protected activity.

In the past, courts have held that participation in EEO activity applies to internal company investigations only when conducted in connection with a formal EEOC charge.  The EEOC specifically disavows this interpretation in its proposed guidance, stating that “participation” encompasses internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is filed with the EEOC. Participation in an EEO process might also include being a witness. However, the EEOC acknowledged that employers may still discipline employees who have raised an EEO allegation, as such activity does not immunize workers from disciplinary measures for performance management issues – so long as the employer has documented legitimate, non-discriminatory, and non-retaliatory reasons for disciplinary measures as a result of the employee’s performance deficiencies.

It is important to note that even if a complaint is baseless, an employee may nevertheless have a viable retaliation claim if the employer thereafter takes an adverse action against the employee unless it can be demonstrated that the employee’s complaint was made in bad faith or for some other illegitimate reason.

The proposed guidance details what the EEOC deems to be protected opposition, which is designed to protect all employees, including those in human resources and management positions:

  • Advising an employer on EEO compliance, such as human resources reporting EEO violations to management;
  • Complaining about alleged discrimination against oneself or others, or threatening to complain;
  • Providing information in an employer’s internal investigation of an EEO matter;
  • Refusing to obey an order reasonably believed to be discriminatory;
  • Resisting sexual advances or intervening to protect others;
  • Passive resistance, such as a supervisor refusing to carry out management’s instruction to discourage subordinates from filing discrimination complaints; and
  • Requesting reasonable accommodations for disability or religious reasons.

It is common for employee handbooks to prohibit employees from discussing their compensation with their coworkers. This practice is not legally defensible. The EEOC’s proposed guidance notes that reprisal for discussing compensation may implicate EEO laws, as well as Section 8 of the National Labor Relations Act, which protects non-supervisory employees from retaliation when they discuss their wages or working conditions with their colleagues as part of a concerted activity, even if the employer is not unionized. If a policy includes provisions that prohibit employees from inquiring about, disclosing, or otherwise discussing wages, the EEOC guidance makes clear that while most private employers are under no obligation to disclose or make wages public, “actions that deter or punish employees with respect to pay inquiries or discussions may constitute retaliation.”

Employer best practices in avoiding claims of retaliation include consistent enforcement of policies and thorough documentation of disciplinary measures for performance issues.  Employers should maintain a written anti-retaliation policy which provides practical guidance on the employer’s expectations and explains that retaliation can be the subject of discipline, including and up to termination of employment. Employers should also provide training for managers regarding what constitutes actionable retaliation and implement an open-door reporting mechanism for employees to express concerns about retaliation, including access to a mechanism for informal resolution.

The EEOC has made clear that addressing retaliatory practices is an area of priority. With that in mind, employers would be well advised to proactively reinforce anti-retaliation principles in their managerial training and employment policies.