Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw | The Daily Recorder | Oct 25, 2016

The Equal Employment Opportunity Commission, or “EEOC,” is the federal agency that enforces federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Equal Pay Act of 1963, and the Age Discrimination in Employment Act. These and other civil rights laws prohibit retaliation against workers for engaging in protected activity, such as filing a complaint with the agency or participating in an investigation.

The EEOC recently issued an updated “Enforcement Guidance on Retaliation and Related Issues,” its first update since 1998. The revised guidance is not as legally binding as a true regulation or statute. But employers should take note, as the agency’s views are influential to courts. Also, because federal and California anti-retaliation law is similar, California courts often follow federal law in this area.

Retaliation Claims

The anti-retaliation components of the civil rights laws protect employees from negative consequences of helping the government enforce the law. The enforcement agencies like the EEOC and the California Department of Fair Employment and Housing take retaliation claims seriously because they view retaliation as interference with their mission of enforcing the anti-discrimination laws.

The key elements of a retaliation claim are: protected activity, “materially adverse action,” and a causal connection between the two. The EEOC divides its Guidance to track these elements. Here are some of the highlights from the Guidance, with a focus on what the EEOC changed.

Protected Activity

The two basic forms of protected activity are participation and opposition. The EEOC defines “participation” as having filed a complaint or charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”

Of note, the EEOC reaffirms that there is no requirement of “good faith” or “reasonableness” when engaged in participation, as opposed to the other type of protected activity, opposition. That means the EEOC will find an employer liable for retaliation even if an employee files a charge with malice.

The EEOC also expands the traditional understanding of “participation” to matters within an organization. Therefore, an employee may establish “participation” merely by making an internal complaint, or participating in an employer’s internal investigation.

“Opposition” to unlawful activity is the other principal type of protected activity. Opposition is broader in scope than participation. However, protected opposition must be reasonable and based on a good faith belief in a violation of the anti-discrimination law.

The EEOC lists a host of conduct that could constitute protected opposition. Even something as simple as accompanying a co-worker to a human resources office so the co-worker can lodge a complaint may be opposition. Other non-obvious forms of opposition include complaints to a third party about the employer’s practices, public statements such as on social media, and even complaining about discrimination in society in general rather than the with respect to the employer itself. The EEOC warns employees that threats of violence, foregoing job duties, or flooding an employer with complaints may not qualify as opposition.

Of note, the EEOC in its Guidance rejects the U.S. Supreme Court’s decision in in Clark County School District v. Breeden, in which the Court held that no reasonable person could deem the plaintiff’s conduct to be protected opposition to harassment. The EEOC maintains that a complaint based on even one instance of misconduct is a sufficient basis for protection from retaliation.

Materially Adverse Action

The EEOC explains that a “materially adverse action” includes any employer conduct that “might well deter a reasonable employee from complaining about discrimination.” The Guidance explains that the definition includes more than refusing to hire or promote an applicant to a new position, suspending or terminating an employee for his complaint, etc. According to the EEOC, actions like lowered evaluations scores or a transfer to a “less prestigious or desirable work location” constitute materially adverse actions. The Guidance also states that even actions that may have “no tangible effect on employment” or “that take[] place exclusively outside of work” may be materially adverse. The issue is whether the conduct might interfere with an employee’s decision to complain about discrimination.

Causal Connection

The EEOC explains that the “but-for” causation standard that applies to retaliation causes, but not discrimination or harassment claims. The employee’s burden is to prove that but-for the employee’s engaging in protected activity, the employer would not have taken the adverse action. That is a tougher standard than “motivating factor,” which applies in discrimination and harassment cases.

The EEOC lists in its Guidance a variety of evidence that can prove causation, including suspicious timing between the adverse action and protected activity, treatment of the plaintiff more harshly than others in similar situations, untruthful or shifting explanations for negative conduct, and even direct evidence such as oral and written statements. However, the EEOC also lists evidence of non-retaliation, such as the employer did not know of the protected activity, a legitimate business reason for action, or that the action would have occurred regardless of the protected activity.

“Promising Practices”

The EEOC ends the revised Guidance with a discussion of “Promising Practices”: ideas for employers seeking to prevent retaliation. For instance, the EEOC recommends that employers maintain a written and easy-to-understand anti-retaliation policy with practical guidance for employees. Another suggestion is to offer training to all employees, not just managers or supervisors. The EEOC also recommends employers implement a practice of following up with those individuals who make complaints or are involved in EEOC proceedings to ensure they are not subjected to retaliation.

The Guidance contains other recommendations, and is an important tool for any employer to proactively protect against retaliation claims. Given retaliation claims are filed more frequently than any other form of charge, employers should consider reading this Guidance and implementing the EEOC’s suggested practices.