• EEOC Releases Enforcement Guidance on Retaliation
  • September 16, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • On August 29, 2016, the Equal Employment Opportunity Commission released its Enforcement Guidance on Retaliation and Related Issues, an updated replacement for the retaliation portion of its Compliance Manual, which was issued in 1998. For more, click here. The Guidance reviews what is retaliation generally, the specific prohibition of interference with the exercise of rights under the Americans with Disabilities Act, remedies, and “promising practices” to prevent retaliation or interference. Along with the Guidance, the EEOC also issued a question-and-answer publication, and a short Small Business Fact Sheet.

    What is Retaliation? The EEOC first reviews its definition of retaliation as when an employer takes a materially adverse action against an applicant or employee because he engages in the protected activity of asserting rights protected by EEO (equal employment opportunity) laws. Such rights include participating in an EEO process or reasonably opposing unlawful EEO conduct.

    “Participation” is defined as filing an EEO complaint (whether internally or externally), serving as a witness, or participating in any other way in an EEO matter. Notably, the EEOC states, “Participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred.” The EEOC further states that while falsehoods and bad faith can be taken into account in investigating and assessing the complaint, “an employer can be liable for retaliation if it takes upon itself to impose consequences for actions taken in the course of participation” even in this context. We believe this lack of a good faith requirement will be problematic for employers.

    With regard to “opposition,” the EEOC provides a list of examples:
    • complaining or threatening to complain about alleged discrimination against oneself or others;
    • providing information in an employer's internal investigation of an EEO matter;
    • refusing to obey an order reasonably believed to be discriminatory;
    • advising an employer on EEO compliance;
    • resisting sexual advances or intervening to protect others;
    • passive resistance (allowing others to express opposition);
    • requesting reasonable accommodation for disability or religion;
    • complaining to management about EEO-related compensation disparities; or
    • talking to coworkers to gather information or evidence in support of a potential EEO claim.
    The EEOC specially remarks that communications about pay may be protected opposition activity, and further may be protected under other laws. Contrary to the participation clause, the EEOC states that the opposition activity must be taken in good faith.

    The EEOC also provides a definition of “materially adverse action” as “any action that might well deter a reasonable person from engaging in protected activity. Examples of retaliation include:
    • work-related threats, warnings, or reprimands;
    • negative or lowered evaluations;
    • transfers to less prestigious or desirable work or work locations;
    • making false reports to government authorities or in the media;
    • filing a civil action;
    • threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification;
    • removing supervisory responsibilities;
    • engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet "severe or pervasive" as required for a hostile work environment;
    • requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
    • terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
    • taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
    The EEOC also notes that there must be evidence of a causal connection between the protected activity and the materially adverse action. It offered examples of such evidence:
    • suspicious timing;
    • oral or written statements expressing retaliatory animus;
    • comparative evidence as to treatment of other employees;
    • inconsistent or shifting explanations
    ADA Interference. The EEOC notes that the Americans with Disabilities Act prohibits “interference” with the exercise or enjoyment of ADA rights, in addition to retaliation, and that the scope of the interference provision is broader than the retaliation provision. It protects anyone “who is subject to coercion, threats, intimidation, or interference with respect to ADA rights.” Again, the EEOC provides examples of such conduct:
    • coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
    • intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
    • threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;
    • issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");
    • interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
    • subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.
    Remedies. The EEOC identifies a range of remedies available for retaliation: preliminary relief, compensatory and punitive damages, and other relief (such as back pay, front pay or reinstatement, changes in policies and procedures, training, and reporting to the Commission).

    Promising Practices. Finally, the EEOC provides a list of “promising practices” that employers may wish to consider in order to minimize the risk of retaliation. Whether any of these are appropriate would depend on the individual workplace. The EEOC also notes that “adopting these practices does not insulate an employer from liability or damages for unlawful actions.” The practices identified by the EEOC include:
    • Written employer policies - the EEOC suggests a plain-language policy that provides examples of retaliation, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for expressing concerns and informal resolution, and a clear explanation that retaliation can be subject to discipline. The EEOC specifically notes that policies that impose discipline for discussing pay are problematic.
    • Training - the EEOC suggests training managers on the anti-retaliation policy, with periodic refresher training. The training should consist of both retaliation avoidance (with specific examples and alternative EEO-compliant options) and response to employee concerns of retaliation.
    • Anti-Retaliation Advice and Individualized Support for Employees, Managers and Supervisors - the EEOC proposes that managers who have engaged in discrimination should be provided with guidance on how to avoid retaliation. They should also be given access to a resource individual for advice and counsel.
    • Proactive Follow-up - the EEOC suggests that the employer check in with employees, managers and witnesses while an EEO matter is pending to see if there are any concerns about retaliation, and to provide ongoing support and advice to managers.
    • Review of Employment Actions to Ensure EEO Compliance - the EEOC proposes that a designated HR official, manager, or in-house counsel review proposed significant employment actions to ensure that they are based on legitimate, non-discriminatory and non-retaliatory reasons. Specifically, the reviewers should ensure: the decisionmakers can identify the reasons for the action and that necessary documentation exists to support the action; performance assessments are factually sound and consistent; corrective process changes are taken where retaliation has occurred; organizational compliance deficiencies are identified and addressed.