Earlier this week, the Equal Employment Opportunity Commission (EEOC) issued a new and comprehensive guidance document on retaliation and related issues, observing that, “Retaliation is now the most frequently alleged basis of discrimination in all sectors.” The new document supersedes the EEOC Compliance Manual Section 8: Retaliation, issued in 1998, and represents “the Commission’s well-considered guidance on its interpretation of the laws it enforces.”
This Guidance provides insight on how the EEOC will assist employers, and their counsel, to minimize exposure to retaliation claims and to how the EEOC will evaluate these types of claims.
The Guidance does not change the well-established elements of a retaliation claim - an employee participates in a protected activity (for example, by complaining of discrimination); an employer takes a materially adverse action against the employee; and a causal connection between the protected activity and the materially adverse action exists.
The Guidance does suggest the EEOC is taking a broader view of what constitutes retaliation. For example:
- Protection from retaliation for opposing unlawful employment practices, and protected opposition activity, “broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination”;
- A materially adverse action is, “any action that might well deter a reasonable person from engaging in protected activity”; and,
- Employees can establish the required causal connection by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent. Such evidence may include suspicious timing, verbal or written statements, comparative evidence of disparate treatment of similarly situated employees, and inconsistent or shifting explanations by the employer.
For employers, the Guidance also highlights several “promising practices” that the EEOC suggests may help reduce the risk of retaliation violations. Promising practices include:
- Having a written, plain-language anti-retaliation policy that provides practical guidance on what retaliation is and how it is avoided, with user friendly examples – including examples of conduct that managers, supervisors, and decision makers may not realize are actionable;
- Training all managers, supervisors, and employees on the employer’s written anti-retaliation policy, being sure not to limit training to those who work in offices by, for example, training laborers, drivers, farm workers, and those who work in manufacturing and service settings;
- Encouraging a respectful workplace – “which some social scientists have suggested may help curb retaliatory behavior” – and having managers and supervisors lead by example that retaliation will not be tolerated;
- Providing all parties and witnesses to an alleged act of discrimination with information about the anti-retaliation policy, how to avoid engaging in retaliation, and how to report alleged retaliation; and,
- Having someone – for example, a human resources or EEO specialist or in-house counsel – review proposed employment actions to ensure they are based on legitimate, non-discriminatory, non-retaliatory reasons.
The Guidance includes numerous examples and illustrations of potentially illegal conduct.