Spike in EEO Retaliation Claims Prompts EEOC to Update Enforcement Guidance

Definition of “Protected Activity” Expanded

Published in Employment Discrimination (Tuesday, February 9, 2016 2:45 pm)

Most U.S. employers are familiar with their obligations to comply with federal equal employment opportunity (“EEO”) laws that prohibit discrimination on the basis of an individual’s personal characteristics, including sex, age, race, religion, national origin, disability, and genetic information. It is also a form of unlawful discrimination for an employer to punish or “retaliate” against an individual for engaging in “protected activity”, such as complaining to a supervisor about discriminatory treatment or serving as a witness in a discrimination lawsuit. Even if the underlying charge of discrimination lacks merit, employers may still have liability if they engage in retaliation against the individual who makes the complaint.

On January 21, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a proposed expansion of its enforcement authority for retaliation claims, citing agency data showing that such claims are now the most frequently alleged basis of employment discrimination against both private and public employers.1 The courts have not always agreed with the EEOC’s interpretation of the laws the agency enforces, and the guidance will likely invite criticism from the employer community.2 Nevertheless, the EEOC’s views on this issue will govern the initial processing and investigation of retaliation claims and should therefore be taken seriously.

“Retaliation” Claims Require 3-Step Analysis

According to the EEOC, “Retaliation occurs when an employer unlawfully takes action against an individual in punishment for exercising rights protected by the EEO laws.”3 The public policy rationale for treating retaliation as a separate form of unlawful discrimination is to ensure individuals are not deterred from coming forward when they believe an EEO violation has occurred. As the U.S. Supreme Court has observed, enforcement of the anti-discrimination laws “depends upon the cooperation of employees who are willing to file complaints and act as witnesses.”4

There are three steps involved in analyzing whether unlawful retaliation may have occurred.  All three must be satisfied.

  1. The first step in analyzing a retaliation claim is to determine whether an individual (either an applicant for a position or a current employee) engaged in “protected activity” which includes either a) “opposing” conduct the individual believes to be discriminatory (“protected opposition”) or b) “participating” in EEO activity (“protected participation”). For example, a female employee who complains to her supervisor that she is paid less than her male co-workers is engaged in “protected opposition,” while an employee who files a charge of sex discrimination with the EEOC is engaged in “protected participation.” Conduct that may fall into the “opposition” category need only satisfy a “reasonableness” test.   According to the EEOC, “An individual need only have had a reasonable belief that the matter complained of violates the EEO laws in order for his statements or actions to constitute protected ‘opposition’.”5
  2. The second step is to determine if the “protected activity” (whether “protected opposition” or “protected participation”) occurred before “adverse action” is taken by the employer (such as terminating the individual from employment). For purposes of retaliation charges, the EEOC interprets “adverse action” quite broadly. It includes “any action that might well deter a reasonable person from engaging in protected activity,”6 including “work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, verbal or physical abuse (whether or not it rises to the level of creating a hostile work environment), [and] transfers to less prestigious or desirable work or work locations.”7
  3. The third step requires a determination of whether there is a “causal connection” between the “protected activity” and the “adverse action.” That is, the facts must show that the individual was terminated because she complained of sexual harassment and not for a separate, non-discriminatory reason, such as poor performance evaluations. According to the EEOC, “The causal link between the adverse action and the protected activity is often established by evidence that the adverse action occurred shortly after the plaintiff engaged in protected activity.” But timing alone is not determinative where the EEOC finds “other evidence that the protected activity, even if it occurred many years earlier, was in fact the motive for the challenged action.”8

EEOC’s Examples of Protected “Participation” and “Opposition”

The EEOC’s proposed guidance provides examples to illustrate employee action that may constitute either protected “participation” or “opposition” in determining whether the employer engaged in unlawful retaliation. Four examples are excerpted below. Examples one and two deal with the “participation” type of protected activity, while three and four illustrate the EEOC’s  “opposition” analysis.

Example 1: Unlawful Retaliation for Protected Participation:

“Jane, a saleswoman, has been employed at a retail store for more than a decade, and has always exceeded her sales quota and received excellent performance appraisals. Shortly after the company learned that Jane provided a witness statement to the EEOC in support of a co-worker’s harassment claim, it terminated Jane, citing her failure to provide 48 hours advance notice to her supervisor of a shift swap with a co-worker. Because same-day notice of a shift swap was a wide company practice that had commonly been permitted, and because of the proximity in time of her discharge to the company’s learning of her protected activity, EEOC finds reasonable cause to believe the discharge was retaliatory.”9

Example 2: No Retaliation for Unrelated Termination:

“Plaintiff, the office manager of a service company, believed her non-selection for various managerial positions was due to sex discrimination, and she posted on Facebook: ‘anyone know a good EEOC lawyer? need one now.” Less than a week after the post, plaintiff was [fired]. She alleged it was retaliatory. However, the employer contended the termination was due to an audit that revealed plaintiff’s extensive unauthorized use of overtime and her repeated violations of company finance procedures, for which plaintiff had been previously issued written discipline. Even though management was aware of plaintiff’s protected activity (her stated intention [on Facebook] to take action on a potential EEO claim), where the evidence shows the firing was in fact motivated by the audit results, plaintiff cannot prove retaliatory discharge.”10

Example 3: Protected Opposition During Internal Investigation:

“An employee who has not lodged any complaint of her own is identified as a witness in an employer’s internal investigation of a co-worker’s sexual harassment allegations. The employee is interviewed by the employer and provides corroborating information about sexual harassment she witnessed and/or experienced. This is protected opposition, even though she has not lodged an internal complaint of her own.” 11

Example 4: Not Protected Opposition Where EEO Allegation Absent:

“[Employee], who is African American, requests a wage increase from [Employer], arguing that he deserves to get paid a higher salary. He does not state or suggest a belief that he is being subjected to wage discrimination based on race or any other protected characteristic. There is no basis to conclude the [Employer] would reasonably have interpreted [Employee’s] complaint as opposition to race or other discrimination prohibited by the EEO laws, because nothing indicated the alleged unfairness was challenged based on an EEO-protected reason. [Employee’s] protest therefore does not constitute protected ‘opposition.'”12

Minimizing the Risk of Retaliation Claims

Employers who engage in unlawful retaliation risk lawsuits where they may be liable for both compensatory and punitive damages. To minimize this risk, it is advisable for employers to take steps that are consistent with “best practices” in other areas of EEO compliance. In its updated guidance, the EEOC recommends that employers maintain a written anti-retaliation policy; provide training to all managers and employees about the policy; and provide individual advice and counsel to managers about the anti-retaliation policy following an employee’s EEO-related complaint. At the very least, employers should ensure that their current EEO policies expressly prohibit retaliation against employees who engage in one of the two types of “protected activity” addressed in this article. It is also advisable to seek the assistance of counsel in responding to specific employee complaints about alleged violations of EEO laws to avoid additional – and costly – claims of retaliation.

 

  1. EEOC Proposed Enforcement Guidance on Retaliation and Related Issues, www.regulations.gov, Docket ID EEOC-2016-0001 (“EEOC Guidance”).
  2. Public comments are due on February 24, 2016.
  3. EEOC Guidance at p. 2.
  4. Burlington N. and Santa Fe Rwy v. White, 548 U.S. 53 (2006).
  5. EEOC Guidance at p. 19.
  6. EEOC Guidance at pp. 37-38.
  7. EEOC Guidance at pp. 39-40.
  8. EEOC Guidance at p. 53.
  9. EEOC Guidance at p. 10.
  10. EEOC Guidance at pp. 10-11.
  11. EEOC Guidance at p. 26.
  12. EEOC Guidance at p. 33.

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Laurie T. Baulig
Laurie T. Baulig

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With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

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