Guidance: On January 21, the US Equal Employment Opportunity Commission (EEOC) issued a 76-page proposed revision to its guidance on workplace retaliation laws. It is the EEOC’s first new guidance since it issued its Compliance Manual on Retaliation in 1998. Citing court decisions from the past 18 years, the EEOC states that its guidance simply adapts its old interpretations to the recent influx of retaliation charges. Retaliation claims have nearly doubled since 1998 and are now the most frequently alleged violation raised with the agency. Some commentators posit, however, that the EEOC’s new interpretations overly broaden employers’ liability, for example, by expanding the scope of what constitutes an adverse employment action and making it easier for a charging party to demonstrate causation between a protected activity and an adverse employment action.

According to the EEOC’s proposed guidance, a charging party may establish that causation by showing, as one appellate court characterized it, a “’convincing mosaic’ of circumstantial evidence that would support the inference of retaliatory animus.” The proposed guidance also provides examples of adverse employment actions, including such things as disparaging the employee to others or in the media, threatening reassignment, and scrutinizing the employee’s work or attendance more closely than that of other employees, without justification.

Impact: Though not binding on courts deciding retaliation claims, the new guidance will strengthen the EEOC’s ability to enforce retaliation laws and will likely be a leading authority on workplace retaliation moving forward. Given the EEOC’s recent attention on retaliation charges, and the heightened number of those charges, employers should review the new guidance closely. The proposed guidance signals increased scrutiny over a widening interpretation of retaliation, and employers can expect retaliation claims that are more numerous, and more difficult to defend, in the future.