With retaliation again reigning as the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”) and retaliation charges having doubled since 1998, the EEOC has proposed updated guidance on retaliation. It seeks input on its proposed guidance through February 24, 2016. Comments may be submitted here in letter, email or memoranda format, or hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. The EEOC’s proposed guidance, which is more than seventy pages long, updates the EEOC Compliance Manual on Retaliation, which was issued in 1998.
The guidance explains the elements of a retaliation claim under federal anti-discrimination statutes and gives examples of what an EEOC investigator might look for in connection with a retaliation charge. Federal equal employment opportunity (“EEO”) laws preclude employers from unlawfully taking action against a charging party or, in some cases, against one who is closely related to or associated with a charging party, to punish them for exercising rights protected by the EEO laws. Protected activity includes (1) participating in the EEO process (which can include participating in an investigation, filing a charge of discrimination, or according to the EEOC, making an internal complaint of discrimination); and (2) opposing a practice made unlawful by one of the federal anti-discrimination statutes. In addition, the Americans with Disabilities Act (“ADA”), prohibits interference with the exercise of rights under the ADA.
In the EEOC’s view, a charging party’s participation in the EEO process is protected even if the charge ultimately is found not to be meritorious. Participation is protected regardless of the reasonableness of the underlying allegations. In contrast, opposing an unlawful practice is only protected where the objecting party reasonably believes that the objectionable practice is unlawful. In the proposed guidance, the EEOC rejects the manager rule that has been adopted by some courts and concludes that all employees, including managers, human resources personnel, and equal employment advisors, are protected under the statutory provisions permitting employees to oppose unlawful employment practices.
The EEOC lists some examples of potential protected activity, including complaining about alleged discrimination or threatening to complain, providing information during an investigation, refusing to obey an order reasonably believed to be discriminatory, resisting sexual advances or intervening to protect others, or requesting reasonable accommodation for a disability or religion. In addition, the EEOC notes that inquiring about or discussing one’s compensation could be protected under federal equal employment laws under some circumstances, such as when it might involve issues of pay discrimination.
The EEOC’s proposed guidance explains that prohibited adverse actions can be either work-related or non-work-related. Work-related actions could include denial of promotion, demotions, suspension, discharge, reprimands, negative evaluations, transfers to less desirable positions, verbal abuse, or enhanced scrutiny of a charging party’s work or attendance. Non-work-related adverse actions could include disparaging an employee to a third party or in the media or false reports to a governmental authority about the charging party. Whether an action is materially adverse depends on the surrounding facts and circumstances. As the EEOC says, “context matters.”
Finally, the EEOC recommends best practices for employers, including the adoption of an anti-retaliation policy with examples of prohibited retaliation, a reporting mechanism, and a clear explanation that anyone who retaliates can be subject to discipline. The EEOC cautions against including any language in the policy that may deter employees from reporting discrimination or retaliation. Thus, an employer’s policy should not warn employees that reports of discrimination found to be false will subject the reporting employee to disciplinary action. The EEOC also recommends that employers train their employees about retaliation and how to avoid it, that they provide anti-retaliation advice to employees, managers, and supervisors, and that employers proactively follow up on any instances of alleged retaliation and review employment actions to ensure compliance with EEO laws.
Employers should expect further action from the EEOC. Given the continuing prevalence of retaliation claims, employers would be wise to review their policies and ensure that their policies adequately address the issue of retaliation.