The EEOC recently issued its Enforcement Guide on Retaliation and Related Issues. The Guide incorporates recent court decisions as well as the EEOC's own interpretation of the statutes that it enforces regarding employee retaliation claims. The Guide supersedes the Compliance Manual Section 8: Retaliation that was issued in 1998.
The Guide sets for several examples of what the EEOC deems to be protected activities by employees. Importantly, the Guide makes it clear that a simple statement by an employee that they plan on making a complaint to management may be construed as sufficient to find that the employee has engaged in a protected activity. Other examples include: providing information in an employer's internal investigation regarding EEOC allegations; refusing to obey an order reasonably believed to be discriminatory; advising an employer on EEOC compliance; resisting sexual advances or intervening to protect others; passive resistance; requesting reasonable accommodation for disability or religion; inquiries and other discussions about compensation.
The Guide clarifies that the EEOC determines what is a materially adverse action on a case by case basis. The EEOC notes that the retaliatory action does not need to be against the complaining employee themselves. Some other examples of materially adverse actions are disparaging remarks made to others, false reports to government authorities, filing a lawsuit, threatening reassignment; scrutinizing the work or attendance of the employee more closely than that of other employees without justification and removal of supervisory responsibilities.
The Guide also provides examples of some conduct that the EEOC has determined may support a finding of retaliation including, suspicious timing, oral or written statement; comparative evidence and inconsistent or shifting expectations.
The Guide is not intended to be binding. It is intended to give both employers and attorneys a resource to determine how the EEOC is likely to interpret certain action in the ever expanding scope of employee retaliation claims.