Why it matters

For the first time in almost 20 years, the Equal Employment Opportunity Commission (EEOC) released proposed guidance on the issue of workplace retaliation, requesting public comment on the 76-page document. Why now? The increase in retaliation claims, the agency explained, with almost twice as many filed since 1998, making retaliation the most common allegation filed with the EEOC. "Retaliation is a persistent and widespread problem in the nation's workplaces," agency Chair Jenny R. Yang said in a statement. "Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws." While the EEOC said it was not making any interpretive changes, employment attorneys may have reason to be concerned with some of the language found in the proposed guidance. For example, retaliation can be established by a "'convincing mosaic' of circumstantial evidence that would support the inference of retaliatory animus," the agency wrote in the document, which could leave employers facing an uphill battle to defend against the claims.

Detailed discussion

Citing a significant rise in the filing of retaliation claims by workers, the Equal Employment Opportunity Commission (EEOC) released proposed enforcement guidance for employers. The last time the agency issued guidance on the subject: 1998. Since then, the percentage of retaliation charges has almost doubled to make retaliation the most frequently alleged type of violation raised with the EEOC.

In fiscal year 2014, for example, almost 43 percent of all private sector charges included retaliation claims; in the federal sector, retaliation has been at the top of the list of claims since 2008 and comprised 53 percent of the violations for fiscal year 2015.

With such figures in mind, the EEOC determined to offer additional guidance to employers. The "Proposed Enforcement Guidance on Retaliation and Related Issues," while not an administrative rule or official decision, serves "as a reference for Commission staff investigating charges alleging retaliation and related issues under all the statutes EEOC enforces," and "may be useful to EEOC staff conducting outreach, and to employers, employees, and practitioners seeking to learn more about this area of the law," the agency said.

A retaliation claim has three elements, the EEOC wrote: protected activity (such as participation in EEO activity or opposition by the individual to discrimination), adverse action taken by the employer, and a causal connection between the protected activity and the adverse action.

The agency noted that protected "opposition" activity encompasses a broad range of "ways in which an individual may communicate explicitly or implicitly" their opposition to perceived employment discrimination. For example, an employee identified as a witness in an internal investigation of a coworker's sexual harassment allegation who provides corroborating information during an interview engages in protected opposition, even if she does not lodge a complaint of her own.

The EEOC took an equally broad stance on causation. "The charging party may discredit the defendant's explanation and demonstrate a causal connection between the prior protected activity and the challenged adverse action by what one appellate court has described as a 'convincing mosaic' of circumstantial evidence that would support the inference of retaliatory animus," according to the guidance.

Playing out in the workplace, the EEOC used an example of a worker that alleges a supervisor denied her a promotion because she opposed the underrepresentation of women in management jobs and was viewed as a "troublemaker." The employer counters that the person selected for the promotion was better qualified for the position because she had a master's degree and the complainant only had a bachelor's degree. An EEOC investigator could find reasonable cause to believe that the employer's explanation is pretextual because the complainant has significantly greater experience working at the company, the agency said, which has long been the employer's most important criterion for selecting managers.

In addition to the written explanation of the EEOC's position and dozens of examples, the guidance featured best practices for employers to minimize the likelihood of retaliation violations. "To reduce the incidence of retaliation, employers can recognize both the potential for retaliation and the interaction of psychological and organizational characteristics that contribute to the likelihood of retaliation," the agency wrote. "While each workplace is different, there are many different policy, training, and organizational changes that employers may wish to consider implementing to achieve this goal."

Employers should maintain a "written, plain-language anti-retaliation policy" with topics such as proactive steps for avoiding actual or perceived retaliation, examples of retaliation that managers may not otherwise realize are actionable, a reporting mechanism for employee concerns, and a "clear explanation" that retaliation can be subject to discipline, up to and including termination, the agency suggested.

Training (for managers, supervisors, and employees) as well as anti-retaliation advice and individualized support—with proactive follow-up to "identify issues before they fester"—should also be automatic parts of an employer's response and investigation following EEO allegations, the EEOC advised.

To read the EEOC's draft guidance, click here.