This next installment of our ongoing series takes a closer look into the U.S. Equal Employment Opportunity Commission’s (EEOC) Proposed Enforcement Guidance on Retaliation and Related Issues. Last week, we discussed the EEOC’s changing views regarding the elements of a retaliation claim. This week, we delve deeper into the EEOC’s proposed guidance, exploring the agency’s attempt to expand the so-called “participation clause,” and to broaden the definition of protected opposition conduct. We will also examine what, in the EEOC’s employee-friendly estimation, constitutes an adverse employment action in the retaliation context.

Expansion of “Participation Activity”

Perhaps the most noteworthy aspect of the EEOC’s proposed guidance is the agency’s expansive interpretation of “participation activity.” As discussed last week, in order to prove a claim of retaliation, a plaintiff must first show that (s)he engaged in a “protected activity.” Protected activity, in turn, consists of either “opposition activity” or “participation activity.”

“Opposition activity,” which is more frequently litigated than its counterpart, quite intuitively means conduct by which an employee opposes an unlawful employment practice. Such activity has historically included providing witness information, assisting, or otherwise participating in a proceeding under the EEO laws, or filing an administrative charge or lawsuit alleging discrimination in violation of the EEO laws.  Federal law bars employers from retaliating against employees who engage in such conduct. Federal law, however, also bars an employer from retaliating against an employee “because [the employee] has … participated in any manner in an investigation, proceeding, or hearing under” the EEO laws. This is more commonly known as “participation activity.”

It is the EEOC’s broad interpretation of “participation activity” that is a cause for concern for employers. For years, a majority of U.S. courts have held that lodging an internal complaint before an agency discrimination charge is filed constitutes opposition activity and not participation activity. In its proposed guidance, however, the EEOC sharply departs from this view, concluding instead that any internal complaint, even where no EEOC charge has been filed, constitutes participation activity.

The EEOC’s re-classification of internal complaints as participation activity is significant because it means that such complaints are automatically considered statutorily protected activity, regardless of whether they are reasonable or made in good faith. Indeed, while the Supreme Court has held that there is a reasonableness requirement for opposition activity, many courts have reached an opposite conclusion with respect to participation activity. This means that employees who make meritless, unreasonable or bad faith claims, even if they are false or malicious, are protected from retaliation.

Protected Opposition Conduct

The EEOC also adopted a broader definition of opposition conduct, including:

  • Accompanying a co-worker to the human resources office to file an internal EEO complaint
  • Complaining to management about discrimination against co-workers
  • Refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons
  • Letter writing, picketing, or engaging in a production slow-down
  • Telling the employer about an intention to file a charge with the EEOC

Notably, the EEOC’s expansive definition of “opposition activity” applies to and protects all employees, including HR professionals and EEO advisors. For instance, any adverse employment action taken against an HR manager based on his/her advice to his/her employer regarding EEO law compliance – traditionally not protected as opposition activity – would be protected under the proposed guidance.

Adverse Employment Action in the Retaliation Context

As we explained last week, to make out a successful claim of retaliation, an employer must have taken an adverse action because the employee engaged in a protected activity. To that end, the proposed guidance notes that the definition of adverse action, in the retaliation context, is much broader than in disparate treatment cases.

According to the EEOC, “retaliation expansively reaches any action that is ‘materially adverse,’ meaning any action that might well deter a reasonable person from engaging in protected activity. An action need not be materially adverse standing alone, as long as the employer’s retaliatory conduct, considered as a whole, would deter protected activity.” Given this broad definition, both work-related and non-work-related actions can qualify as materially adverse according to the EEOC. For example, work-related threats, warnings, reprimands, transfers to less prestigious or desirable work or work locations, disparaging the employee to others or in the media, making false reports to government authorities, threatening reassignment, scrutinizing work or attendance more closely than that of other employees without justification, making threats of deportation, and giving an inaccurately lowered performance appraisal or job reference, are all given as examples of adverse action. This broad definition of “adverse action” makes it easier for plaintiffs to prove that they were subjected to unlawful retaliation.

What Comes Next?

The EEOC will accept comments on the proposed guidance through February 24. After the EEOC reviews and considers the input, the EEOC Commissioner will consider any revisions to the draft guidance before it is finalized.

Be on the lookout for the final part in our four-part series next week.