The Equal Employment Opportunity Commission (EEOC) has recently published updated enforcement guidance on retaliation. This is the first time that the guidance has been updated since 1998. The 70 page guidance provides court interpretation and examples to help determine what constitutes illegal retaliation.
Each of the EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).
Retaliation charges are the most popular of all charges received by the EEOC. In fiscal year 2015, the EEOC reports that 44.5% of all charges received alleged retaliation.
In order for a retaliation violation to occur, there are three components needed: (1) protected activity by an employee such as filing a harassment or discrimination complaint; (2) adverse action taken by the employer such as demotion or termination; and (3) a “causal connection” between the protected activity and the adverse action.
Based on the EEOC Guidance, the following are considered protected activities:
- Complaining or threatening to complain about alleged discrimination against oneself or others.
- Providing information in an employer’s internal investigation of an EEO matter (discrimination or harassment).
- Refusing to obey an order reasonably believed to be discriminatory.
- Advising an employer on EEOC compliance. The example given in the EEOC Guidance is an HR manager who believes the company is improperly denying reasonable accommodation requests. She brings her concern to management and shortly after her employment is terminated.
- Resisting sexual advances or intervening to protect others. The EEOC Guidance gives an example of an employee telling a supervisor to “leave me alone” or “stop it.” A coworker intervening on behalf of the employee being harassed would also be engaging in protected activity.
- Passive resistance. The example given is a supervisor who refuses to follow instructions given to him by management to dissuade his subordinates from filing complaints of discrimination or harassment. His refusal is considered protected activity.
- Requesting reasonable accommodation for disability or religion.
- Complaints or questions related to unfair/discriminatory compensation. In order to be protected activity there does not need to be mention of “discrimination” so long as the employee complaining says that their pay is unfair and inquires as to the pay of employees in the same position of the opposite gender.
Types of Adverse Action
Adverse action can include work-related and non work-related activities including the following:
- Refusal to hire;
- Denial of job benefits;
- Denial of promotion;
- Work-related threats, warnings or reprimands;
- Negative or lowered performance evaluations;
- Transfers to less prestigious or desirable work or work locations;
- Disparaging the person to others, inside or outside of the workplace, or in the media;
- Making false reports to government authorities;
- Filing a civil action;
- Scrutinizing work or attendance more closely than that of other employees without justification;
- Removal of supervisory responsibilities;
- Any other action that might dissuade reasonable individuals from engaging in protected activity.
Examples of Facts that May Defeat a Claim of Retaliation
- Employer was unaware of protected activity. In order for a causal connection to exist, the employer (either the decision maker or someone who directly influenced the decision maker) must be informed of the prior protected activity.
- Legitimate non-retaliatory reason for alleged adverse action. Examples of non-retaliatory reasons include, but are not limited to: poor performance; inadequate qualifications for the position sought; misconduct; reduction in force or other downsizing.
- Evidence of retaliatory motive but adverse action would have happened anyway.
Tips for Employers
While there is no specified set of policies and procedures to follow to insulate an employer from liability or damages for unlawful actions, there are some best practices recommended to be followed to reduce the risk of a retaliation violation:
- Implement a written, plain-language anti-retaliation policy including a reporting mechanism for employee concerns about retaliation and a clear explanation that retaliation can be subject to disciplinary action, up to and including termination.
- Provide training to all managers, supervisors, and employees at all levels of the organization on the employer’s written anti-retaliation policy.
- Identify multiple individuals that employees can go to if they feel they are being retaliated against.
- Avoid making changes to the complaining employee’s job duties, rate of pay, benefits or other terms of employment, especially immediately following a complaint of harassment or discrimination.
- When doing an internal investigation following a complaint of harassment or discrimination, remind all employees involved of the company’s anti-retaliation policy.
- Keep thorough documentation of decisions to make changes to terms of employment for those employees who have previously participated in protected activity.
- Follow up with employees who have made complaints of harassment or discrimination to find out whether any retaliation, real or perceived, has occurred. This provides the employer with an opportunity to let the employee know that they take protection against retaliation very seriously.