Employers should review their policies concerning retaliation and Americans with Disabilities Act (ADA) interference in light of the new Enforcement Guidance on Retaliation published by the EEOC this week. As retaliation is now the most frequently alleged basis of discrimination, employers should take note.

Federal employment discrimination laws make it illegal to fire, demote, harass, or otherwise “retaliate” against applicants or employees because they complained to their employer about, or otherwise objected to, discrimination on the job (traditionally defined as the “opposition clause”), or filed a charge of discrimination with the EEOC or participated in an employment discrimination proceeding (such as an investigation or lawsuit) (traditionally defined as the “participation clause”). Thus, actionable retaliation occurs when an employer unlawfully takes a “materially adverse action” against an individual in punishment for exercising rights protected by any of the federal employment discrimination laws. The anti-retaliation provisions of these laws ensure that individuals are free to raise complaints or engage in other protected activity without retribution or punishment.

The new guidance updates and replaces the EEOC’s retaliation guidance issued in 1998. A few key points from the retaliation guidance include: (1) both protected activity and unlawful retaliation actions are to be broadly interpreted; (2) “third party” retaliation, whereby the employer takes action against an employee for another’s protected activity, is unlawful; and (3) retaliation must be the “but for” cause of an employer action to be unlawful (i.e., there must be a causal connection between the action and the protected activity).

The 2016 guidance includes a far more expansive definition of “protected activity” than the previous guidance. For example, the updated guidance protects complaints which are internal (i.e. not shared outside the Company), oral, informal, ambiguous, and those concerning actions which are ultimately deemed lawful. Protected activity also now includes complaints to management consistent with legal positions taken by the EEOC (for example, a complaint that an employee believes he is being harassed by coworkers based on his sexual orientation). In addition, under the new guidance, a human resource manager advising an employer on EEO compliance is deemed protected, an employee’s refusal to obey an order to make assignments believed to be based upon race is deemed protected, and an employee’s request for exception to a uniform policy as a reasonable accommodation is deemed protected.

Also of note, the 2016 guidance expands the types of employment actions considered to be “materially adverse.” Employers may be surprised to learn that such “materially adverse actions” include not only work-related actions (such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge) but also actions that are not work related (such as exclusion from weekend functions because of a complaint). The guidance cautions that the following non-traditional actions are also now considered materially adverse actions: disparaging the person to others or in the media; making false reports to government authorities; filing a civil action; threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification; removal of supervisory responsibilities; abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not sufficiently “severe or pervasive” to create a hostile work environment; requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity; taking (or threatening to take) a materially adverse action against a close family member; and any other action that might deter reasonable individuals from engaging in protected activity

Clearly, the retaliation landscape has changed since the issuance of the 1998 guidance.

The guidance does helpfully outline examples of legitimate, non-retaliatory reasons for a challenged action that may defeat a claim of retaliation, including: (1) poor performance; (2) inadequate qualifications for position sought; (3) qualifications, application, or interview performance inferior to the selectee; (4) negative job references; (5) misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and (6) reduction in force or other downsizing.

In addition to discussing traditional retaliation, the guidance also addresses the ADA prohibition of “interference” with the exercise of rights under the ADA. The guidance explains that the ADA interference provision is broader than the anti-retaliation provision, protecting any individual who is subject to coercion, threats, intimidation, or interference with respect to ADA rights.

Finally, the guidance offers different types of policy, training, and organizational changes which employers may wish to consider implementing to minimize the likelihood of retaliation violations, or what the EEOC calls “promising practices.” These promising practices include:

  • Maintaining a written, plain-language anti-retaliation policy;
  • Providing supervisors with examples of retaliation that they may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation;
  • Providing practical guidance to managers and supervisors on interactions with employees who have lodged discrimination allegations against them;
  • Establishing a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • Training all managers, supervisors, and employees on the employer’s written anti-retaliation policy.