• EEOC’s Proposed Guidance Expands the Scope of Retaliation
  • March 8, 2016 | Author: Lee C. Durivage
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office
  • On January 21, 2016, the EEOC issued its Proposed Enforcement Guidance on Retaliation and Related Issues, the first guidance on retaliation issued by the EEOC since 1998. The EEOC determined that the updated guidance was needed because 43 percent of charges filed with the EEOC assert claims of retaliation. While the guidance is currently open for commentary, the 76-page proposal should have employers paying attention to the expanded interpretations of the law that EEOC investigators will use in their investigations going forward.

    For instance, the guidance focuses on the fact that anyone who “participate[s]...in any manner” in an investigation (formal or informal) where the anti-discrimination laws may apply will be deemed to have engaged in “protected activity.” In fact, the guidance expressly rejects the “manager rule,” where managers who are required to investigate discrimination claims cannot be deemed to have engaged in “protected activity.” Other examples of protected activity cited by the EEOC include:
    • Providing any information in an employer’s internal EEO investigation, even if it helps the employer;
    • Refusing to obey an order believed to be discriminatory;
    • Advising an employer on EEO compliance;
    • Making complaints against a previous employer; and
    • Raising discrimination claims, even if the employee is not protected by the statute (i.e., an employee who is younger than 40 years old making a complaint of age discrimination).
    Significantly, the EEOC’s guidance not only expands the type of activities that will be deemed “protected,” but it also expands the scope of action that could be deemed “adverse.” Specifically, in addition to the traditional adverse actions (termination, demotion, denial of promotion), the EEOC provides the following examples of actions that “might well deter reasonable individuals from engaging in protected activity:”
    • Warnings, reprimands and negative evaluations;
    • Transfers to less desirable work or location;
    • Disparaging the person;
    • Threatening reassignment;
    • Scrutinizing work or attendance more closely than others; and
    • Giving inaccurately lowered performance appraisals, even if not unfavorable
    Finally, while the EEOC acknowledges that retaliation must be the “but for” cause between the “protected activity” and the “adverse action,” it noted that a plaintiff may establish a causal connection by demonstrating “a ‘convincing mosaic’ of circumstantial evidence that would support the inference of retaliatory animus.” In particular, the EEOC states that this “mosaic” may include evidence of: suspicious timing; verbal or written statements; comparative evidence regarding similarly situated employees; falsity of the employer’s proffered reason for the action; or “any other ‘bits and pieces’ from which an inference of retaliatory intent might be drawn.”

    Although this guidance is in “draft form,” employers ought to expect a significant increase in retaliation claims made to the EEOC. As a result, employers should review their employment policies and make sure their handbooks are updated and that the discipline of employees is handled appropriately and consistently throughout the company. Otherwise, the EEOC may look at these failures as a type of “bits and pieces” in an effort to find in favor of plaintiffs.