For the first time in nearly 20 years, the Equal Employment Opportunity Commission has issued proposed enforcement guidance regarding retaliation claims. According to the EEOC, the revised guidance is necessary in light of several court decisions, including the Supreme Court’s decision in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), holding that retaliation claims under Title VII are subject to a “but-for” (as opposed to a “contributing factor”) causation standard. The EEOC also notes in its 76 page proposal that new guidelines are necessary because the percentage of retaliation charges has nearly doubled since 1998, when the agency last issued guidance regarding retaliation claims.
The EEOC’s proposed guidance addresses the elements of a retaliation claim, remedies under federal anti-retaliation laws, interference claims under the Americans with Disabilities Act, and best practices for employers. We highlight a few of the EEOC’s key proposals.
First, the EEOC proposes expanding the definition of “oppositional” activity to include implicit opposition to perceived employment discrimination. For example, according to the proposed Guidance, if an employee merely answers questions about discrimination during an investigation, the employee could be viewed as engaging in “oppositional” protected activity. In proposing its new definition of “oppositional” activity, the EEOC broadly interprets the Supreme Court’s statement in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn. 555 U.S. 271, 277-78 (2009) that a person could potentially engage in “oppositional” protected activity “by responding to someone else’s question just as surely as by provoking the discussion.”
Second, the EEOC proposes expanding the definition of “adverse action” to include any action that “might well deter a reasonable person from engaging in protected activity.” This standard would be consisitent with the Supreme Court’s holding in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
And third, the EEOC advises employers to adopt certain best practices, including: (1) establishing written anti-retaliation policies, which include user-friendly examples of “do’s and don’ts”; (2) providing training to all employees; (3) improving practices and responses to retaliation complaints; (4) proactively following-up with relevant individuals during pending disputes; and (5) ensuring that a designated individual review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.
The public has thirty days to provide feedback and comments on the EEOC’s proposed enforcement guidance. The guidance, if adopted, will not carry the same weight and force of law as regulations or statutes. Still, it will inform the EEOC’s investigation and prosecution of retaliation claims. Accordingly, employers should be prepared for an increase in retaliation claims filed, investigated and prosecuted by the EEOC and will be well-served by implementing internal controls to address the particular concerns voiced by the EEOC.