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On August 25, 2016, the Equal Employment Opportunity Commission (EEOC) issued final Enforcement Guidance on Retaliation and Related Issues. The new Guidance replaces the EEOC’s 1998 Compliance Manual Section on retaliation. The EEOC has also issued two short resource summary documents to accompany the new guidance: a Questions and Answers document and a Small Business Fact Sheet.

According to the EEOC, retaliation is asserted in nearly 45 percent of all EEOC charges and is the most frequently alleged basis of discrimination in all employment sectors.

Retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws that are enforced by the EEOC (i.e., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act and Title II of the Genetic Information Nondisclosure Act). A retaliation claim has three elements: (1) protected activity; (2) a materially adverse action by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action.

Protected Activity

Protected activity includes "participating" in an EEO process or "opposing" discrimination. Participating in an EEO process includes raising a claim, testifying, assisting or participating in any manner in an investigation or proceeding under the EEO laws. The protection applies regardless of whether the employee participates in a formal EEOC proceeding or an employer’s internal process.

Opposition activity is defined to include any activity by which an individual opposes any practice made unlawful by the EEO laws; however, only individuals who act with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it are protected from retaliation, and the manner in which the employee raises the issue must be reasonable. For example, reasonable opposition activity can include making complaints to someone other than the employer, raising the complaint publicly, advising an employer of intent to file a claim and telling a supervisor to cease harassment activity. Unreasonable opposition would include filing numerous patently specious complaints or badgering a subordinate to give or change a witness statement.

Materially Adverse Action

The new Guidance cites the 2006 Supreme Court decision, Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), for the proposition that a materially adverse action is anything that could be reasonably likely to deter protected activity – even if it has no tangible effect on a person’s employment. The Guidance explains that a materially adverse action can take place outside of work and can be taken against a third party. For instance, threatening to terminate a business relationship with a spouse’s company could constitute a materially adverse action.

Causal Connection

The Guidance explains that the decision maker responsible for taking the materially adverse action does not need to have retaliatory animus. Rather, employers can be liable if one of their agents, motivated by discriminatory or retaliatory animus, intentionally and proximately causes the decision maker to take the action.

The Guidance also explains the appropriate causation standards. In private sector and state and local government retaliation cases, the causation standard requires evidence that, "but for" a retaliatory motive, the employer would not have taken the adverse action. In federal sector Title VII and ADEA retaliation cases, however, retaliation is prohibited if it was a motivating factor.

The Guidance suggests that retaliation can be established if the evidence shows that it is more likely than not that retaliation has occurred. Different pieces of evidence, considered together, may allow an inference that the materially adverse action was retaliatory. The evidence may include suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently and falsity of the employer’s proffered reason for the adverse action.

Interference under the ADA

The new Guidance also discusses the "interference" provision in the Americans with Disabilities Act (ADA), which "prohibits coercion, threats or other acts that interfere with the exercise of ADA rights." The interference provision protects any individual subject to coercion, threats, intimidation or interference with respect to ADA rights. The Guidance offers several examples of such interference, including a manager encouraging an employee not to advise a coworker to seek reasonable accommodation and refusing to consider a job applicant who refuses to submit to a pre-employment medical exam.

EEOC’s Promising Practices to Avoid Retaliation Claims

The new Guidance identifies several "promising practices" employers should consider to minimize retaliation violations:

  • Maintain a written, plain-language, anti-retaliation policy that provides practical guidance, user-friendly examples and removes any practices that may deter employees from engaging in protected activity, such as policies that punish employees for inquiring, disclosing or otherwise discussing wages;
  • Train all managers, supervisors and employees on the written anti-retaliation policy and to proactively handle and respond to employee concerns about potential EEO violations;
  • Provide guidance on avoiding actual and perceived retaliation as part of the investigation and response of any EEO matter, including proactive follow-ups with employees, managers and witnesses during the pendency of an EEO matter to ensure retaliation is not occurring; and
  • Have an EEO specialist, designated management official or counsel review proposed employment actions to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.