EEOC Updates Guidance on Retaliation Law Enforcement

Retaliation is the claim alleged most frequently in charges filed with the U.S. Equal Employment Opportunity Commission (EEOC). Nearly 45 percent of agency charges include a retaliation claim. On August 29, 2016, the EEOC issued Enforcement Guidance on Retaliation and Related Issues that replaces its 1998 Compliance Manual section on retaliation. The agency also issued "Q&A" and fact sheet summaries of the new guidance.

What Counts as Retaliation?

The guidance discusses types of activities in which employees and applicants may engage with protection against retaliation. It also discusses what punitive actions by employers may meet the "materially adverse" standard for unlawful retaliation. The agency recognizes the U.S. Supreme Court has held that actions must be more than "normal petty slights, minor annoyances, and simple lack of good manners" to rise to the level of retaliation. There are few hard-and-fast rules on which employers may rely, however, because the significance of any act challenged as a form of retaliation depends on the circumstances.

Reprimands, unpleasant work assignments, unfavorable schedule changes, threatened reassignment and heightened scrutiny of job performance may be unlawful retaliation, depending on the facts. Another example in the guidance of unlawful retaliation is threatening to verify authorization to work in the U.S. only after an individual engages in protected activity such as making an equal employment opportunity (EEO) complaint. The focus when it comes to evaluating whether an action is “materially adverse” is whether it is reasonably likely the action would dissuade the particular employee or applicant involved from engaging in protected activity — regardless of whether the action actually did dissuade that individual from engaging in such activity.

Employers who prohibit employees from comparing notes about their pay rates should take note that the EEOC is actively challenging such rules, as discussed in the guidance. Penalizing employees for discussing compensation among themselves may be unlawful retaliation since such discussions can bring to light unlawful discrimination in pay practices.

May Employers Discipline or Discharge for False or Bad-Faith Reporting?

A key question employers often face is whether they lawfully may discipline or discharge a person who provides false information in an EEO investigation, or who makes or supports an EEO complaint in bad faith. The EEOC guidance states that:

• If the information was provided by someone as a complainant or witness in an agency investigation or an administrative charge or a lawsuit, the answer is no. The only permissible negative consequence is that the factfinder, investigator or adjudicator may not find the testimony credible.
• If the information was provided by either a witness or complainant in an internal investigation of an EEO complaint, the EEOC still says the answer is no, although some courts disagree on this issue, and the U.S. Supreme Court has not addressed the question directly.
• If the individual is opposing some perceived violation of the EEO laws in another manner, the opposition must be based on that individual's reasonable, good-faith belief that the conduct opposed is, or could become, unlawful.
  • Examples of activities that may be protected include encouraging a coworker to make a sexual harassment complaint or telling a manager that an action such as a promotion selection decision seems discriminatory based on protected status such as race or sex
  • The agency emphasizes that there are no "magic words" required in order to receive protection. For example, the person need not specifically refer to discrimination or harassment. A simple question such as an inquiry by a female employee who asks, "How much are the men getting paid per hour?" may constitute protected activity, even if the employer considers pay rates confidential.
  • The EEOC says that individuals may be acting reasonably by doing things such as writing critical letters to customers protesting perceived discrimination or going outside the prescribed internal complaint procedure to allege discrimination, but "an overwhelming number of patently specious complaints" is not reasonable.

How Can Employers Comply With the Guidance?

Given the upward trend in retaliation claims and the EEOC's very active focus on enforcing anti-retaliation laws, employers should review their prevention plans, taking into account "promising practices" suggested in the new guidance, which include:

• Anti-retaliation policies that are written in plain language and include user-friendly examples.
• Training that includes illustrative scenarios.
• Clear advisements to anyone involved in any report or action involving an EEO allegation about protections against retaliation.
• Proactive follow-up to reports or actions involving EEO allegations to ensure there was no subsequent retaliation against anyone who provided information or otherwise supported the allegations.
• Advance review of employment actions to ensure they are not "tainted" by any retaliatory motive.