According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.
Elements of a Retaliation Claim
Section II of the enforcement guidance explains the elements of a retaliation claim, illuminating what constitutes protected activity, what a materially adverse action is, and what causal connection is needed to support a finding of retaliation. Although these three elements are not new to an alleged claim of retaliation, the enforcement guidance provides definitions and examples of what does and does not establish each element of a retaliation claim. For instance:
- Protected Activity: There are two instances in which an individual is protected from retaliation and can establish the first element of a retaliation claim. That is, protected activity includes (1) “participating” in an EEOC process (e.g., “having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under an EEOC enforced statute”) or (2) “opposing” discrimination either explicitly or implicitly (e.g., communicating opposition, accompanying a coworker to file a complaint, or refusing to obey an order reasonably believed to be discriminatory).
- Materially Adverse Action: To satisfy the second element of a retaliation claim an individual must prove a materially adverse action was taken against him or her. A materially adverse action is “any action that might well deter a reasonable person from engaging in protected activity.” It can include work-related actions (e.g., denial of a promotion or refusal to hire) or actions that are not work-related (e.g., “an action that has no tangible effect on employment”).
- Causal Connection: Lastly, unlawful retaliation is only established if it is proven that the employer took the materially adverse action because the individual engaged in protected activity. In private sector, state, and local government retaliation cases, the individual must establish a “but-for” retaliatory motive. Whereas, federal sector Title VII and ADEA retaliation is prohibited if it was a “motivating factor.”
ADA Interference Provision
Section III of the enforcement guidance addresses the separate “interference” provision under the Americans with Disabilities Act (“ADA”), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. The enforcement guidance section goes on to explain that “interference” is broader than the “materially adverse” standard needed for retaliation and, therefore, prohibits more conduct.
Section IV of the enforcement guidance provides details on the types of remedies that are potentially available under the anti-relation provisions of the various statutes enforced by the EEOC. Preliminarily, the EEOC can seek temporary or preliminary injunctive relief pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), the ADA, and the Genetic Information Non-Discrimination Act (“GINA”), which incorporate a provision for such relief. This remedy is also available under the Age Discrimination in Employment Act (“ADEA”) and the Equal Pay Act (“EPA”) in certain circumstances. Additionally, compensatory and punitive damages are available under the aforementioned statutes.
Most importantly for employers, Section V of the enforcement guidance – “promising practices” – provides helpful information and tips to employers wishing to avoid potential retaliation claims. These practices include, but are not limited to:
- Written employer policies that include an anti-relation policy and practical guidance on the employers expectations;
- Training of all managers, supervisors, and employees on the employer’s written anti-retaliation policy, as well as other specific, targeted training on EEO compliance;
- Anti-retaliation advice and individualized support for employees, managers, and supervisors on tips for avoiding actual or perceived retaliation and how to respond to allegations of retaliation;
- Proactive follow-up during the pendency of an EEO matter; and
- Review of employment actions to ensure EEO compliance by requiring decision-makers to identify reasons for their actions, scrutinizing performance assessments, implementing change where retaliation is found, and reviewing relevant data.
While these practices “may help reduce the risk of violations,” the EEOC warns that “adopting these practices does not [completely] insulate an employer from liability or damages for unlawful actions.” Nonetheless, employers are advised to take advantage of some or all of the aforementioned practices.
In addition to the enforcement guidance, the EEOC has also published a summary Questions & Answers publication and a Small Business Fact Sheet, which are much more user-friendly resources for employers. For questions regarding this blog, or retaliation generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.