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On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued its final enforcement guidance on retaliation and other related issues. The EEOC also issued two short user-friendly resource documents to accompany the new guidance: a question and answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language.

According to the EEOC’s announcement, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination," said EEOC Chair Jenny R. Yang. "The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights."

Topics explained in the new guidance include:

  • - the scope of employee activity protected by the law;
  • - legal analysis to be used to determine if evidence supports a claim of retaliation;
  • - remedies available for retaliation;
  • - rules against interference with the exercise of rights under the ADA;
  • - and, detailed examples of employer actions that may constitute retaliation.

Retaliation Allegations Continue to Grow

Since the EEOC’s 1998 Compliance Manual section on retaliation, the U.S. Supreme Court has issued several decisions addressing retaliation under EEOC enforced laws, and the filing of EEO claims that include a retali­ation allegation has continued to grow. Charges of retaliation surpassed race discrimination as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by the EEOC in 2015. In the federal sector, retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015. Remember that an employee can succeed on a retaliation claim, even if they lose on the underlying discrimination claim.

Section II of the guidance explains the concepts of participation and opposition, what types of employer actions can be challenged as retaliation, and the legal standards for determining whether the employer's action was caused by retaliation in a given case. Section III addresses the additional ADA prohibition of "interference" with the exercise of rights under the ADA.  The interference provision goes beyond the retaliation prohibition to make it also unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual's exercise of any right under the ADA, or with an individual who is assisting another to exercise ADA rights. Section IV addresses remedies, and Section V addresses promising practices for preventing retaliation or interference.

Employee Protections, But Performance Still Counts

As the guidance notes and suggests, the breadth of these anti-retaliation protections does not mean that employees can immunize themselves from consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with an enforcement agency. Employers remain free to discipline or terminate employees for legitimate, non-discriminatory, non-retaliatory reasons, notwithstanding any prior protected activity.  Whether an adverse action was taken because of the employee's protected activity depends on the facts. If a manager recommends an adverse action in the wake of an employee's filing of an EEOC charge or other protected activity, then the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.

Actions That May Constitute Retaliation

The EEOC’s accompanying question and answer publication lists the following acts as examples of adverse employment actions that may constitute retaliation. Keep in mind that not all Circuit Courts agree with the EEOC’s expansive view of adverse employment actions (i.e., reprimands are not adverse employment actions in some Circuits):

  • - work-related threats, warnings, or reprimands;
  • - negative or lowered evaluations;
  • - transfers to less prestigious or desirable work or work locations;
  • - 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).

Employer Assertions to Defeat Claims of Retaliation

The EEOC guidance recognizes that retaliation claims against private sector employers and state or local government employers requires that "but for" a retaliatory motive, the employer would not have taken the adverse action. "But for" causation means, even if there are multiple causes, the materially adverse action would not have occurred without retaliation.

The question and answer publication lists the following as examples employers can assert to defeat claims of retaliation under the “but for” causation standard:

  • - The employer was not, in fact, aware of the protected activity.
  • - There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as:
    • poor performance;
    • inadequate qualifications for position sought;
    • qualifications, application, or interview performance inferior to the selectee;
    • negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual);
    • misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
    • reduction in force or other downsizing.
  • - Similarly-situated applicants or employees who did not engage in protected activity were similarly treated.
  • - Where the "but-for" causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive.

Interference with ADA Rights

With respect to interference with ADA rights, the guidance and question and answer publication notes that the ADA prohibits not only retaliation, but also interference with statutory rights. Interference is broader than retaliation. Under the ADA's interference provision, it is unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual's exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights. Some employer acts may be both retaliation and interference, or may overlap with unlawful denial of accommodation. Examples of interference include:

  • - 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/she 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/she assisted a coworker in requesting reasonable accommodation.

A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

The EEOC lists the following as promising practices that can assist employers in avoiding retaliation claims:

  • - Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer's expectations with user-friendly examples of what to do and not to do.
  • - Employers should consider training all managers, supervisors, and employees on the employer's written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.
  • - Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
  • - Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer's commitment to protect against retaliation.
  • - Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.

The Small Business Fact sheet adds to the above practices and states that education, documentation review and support are three ways employers can help reduce retaliation claims. In the area of education, the EEOC suggests that supervisors and managers may not know that certain acts are considered illegal retaliation or interference. An employer can educate its workforce by having a written, plain-language policy, and by training all of its employees to identify and stop retaliation and interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur. In the area of documentation, managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure that they are justified and consistent with existing practice. For support, the EEOC suggests employees who are accused of employment discrimination, harassment, or interference may benefit from ongoing, individual support. The employer can discuss its policies and provide tips for avoiding actual or perceived retaliation and interference.

Establishing, implementing and enforcing a retaliation policy, as one does with their EEO policies, will not only limit retaliation claims at the outset but will also minimize the impact of any claimed retaliation as well. The EEOC has issued a number of guidance documents recently. It behooves all employers to familiarize themselves with this guidance.