Hearing Bells and Whistles: An Employer's Guide to Avoiding Retaliation Claims

8 min


The number of administrative charges alleging retaliation has more than doubled over the past several years. In response to the proliferation of retaliation claims, the Equal Employment Opportunity Commission issued its "Guidance on Investigating and Analyzing Retaliation Claims" on May 20, 1998. The EEOC's broad interpretation greatly expands the ability of employees, former employees and even job applicants to state prima facie retaliation claims. This workshop is designed to explore the limits of this expanded liability, and hopefully, set up a system of "bells and whistles," that will warn employers away from potential charges of retaliation as a result of inadvertent acts undertaken in response to everyday workplace scenarios.


Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act all prohibit retaliation by an employer against an individual who has engaged in "protected activity." The EEOC's guidance did not break new ground in describing the elements of a retaliation claim. The guidance explains that protected activity still consists of either opposing a practice made unlawful by one of the employment discrimination statutes (the "opposition" clause), or filing a charge, testifying, assisting, or participating in any manner in an investigation, hearing or other legal proceeding, under the applicable discrimination statute (the "participation" clause). Either opposition or participation may form the basis of a retaliation charge.

The EEOC guidance also adopts the generally recognized principle that retaliation claims contain three essential elements: (1) opposition to discrimination or participation in covered proceedings; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse action.

In addition, the EEOC guidance continues to recognize an employer's ability to rebut a prima facie charge of discrimination by offering legitimate, non-retaliatory reasons for their actions, such as poor job performance, inadequate qualifications, violation of work rules, insubordination or, with respect to a negative job reference, truthfulness of the information reported. Finally, the EEOC guidance reaffirms a charging party's ability to show that non-retaliatory reasons offered by an employer are pretextual, and states that pretext may be shown through the presentation of evidence that the charging party was treated differently from similarly situated employees after engaging in protected activity, or that his or her performance was subjected to heightened scrutiny after the protected activity. While these concepts underlying claims of retaliation are not novel, the EEOC guidance has taken a more expansive view of what constitutes an employee's "opposition" and the standards for showing an actionable "adverse action."

With regard to acts of opposition, employee threats to file a charge or other formal discrimination complaint have always been protected. However, the EEOC guidance announces that complaints to anyone, including non-supervisory co-workers, about alleged discrimination against oneself or others may provide the basis for a retaliation claim. According to the EEOC, other examples of protected opposition include refusing to obey an order because of a reasonable belief that it is discriminatory, requesting a reasonable accommodation for a disability, or requesting a religious accommodation.

Similarly, the EEOC guidance states that the opposition need not be in writing and may even be nonverbal, such as picketing or engaging in a production slow-down. Moreover, it is not even required that a complainant use the term "discrimination." Rather, a complaint, according to the EEOC, will constitute protected opposition to discrimination as long as the complaint or behavior could reasonably be interpreted as a protest about discriminatory practices. For example, the EEOC will view a verbal complaint about sexually derogatory graffiti as protected opposition to sexual discrimination. In contrast, a complaint by an African-American female that she deserves a higher salary, without more, will not be sufficient to raise an inference of race or sex discrimination, and thus, will not constitute protected opposition.

Although the guidelines broadly interpret protected opposition, the EEOC makes clear that not every protest against job discrimination is protected and that the manner of opposition must be reasonable. As examples of unreasonable and, thus, unprotected protests, the EEOC cites the unauthorized photocopying of confidential documents to support a discrimination claim, lodging an overwhelming number of frivolous complaints, or soliciting employees to give false testimony in support of a claim of discrimination. Furthermore, an employee's opposition must be based on a reasonable and good faith belief that the activities or actions being opposed are illegal. Therefore, protest by an employee who believes that an employer's actions are unfair, but not discriminatory, will not be protected.

Prior to publication of the EEOC guidance several court opinions, including the Fourth Circuit's decision in Childress v. Richmond, 134 F.3d 1205 (4th Cir. 1998), narrowly construed the class of "aggrieved persons" entitled to file charges or sue for retaliation. Disagreeing with these decisions, the EEOC guidance asserts that the person claiming retaliation need not be the same person who actually engaged in the protected activity. According to the EEOC, complaints on behalf of another, or by an employee's representative, constitute protected opposition both by the person who makes the complaint and by the person on whose behalf the complaint is made. Likewise, according to the EEOC, retaliation against a close relative of an individual who opposed discrimination can be challenged by both the individual who engaged in the protected activity and the relative where both of these individuals are employees. Thus, the potential plaintiff class is almost limitless under the EEOC's interpretation.

The area where the EEOC guidance most greatly expands the coverage of retaliation claims, however, is found in its broad vision of the type of activities that may be found to constitute "adverse action." Observing that the obvious types of retaliation are denial of a promotion, a refusal to hire, a denial of job benefits, demotion, suspension, and discharge, the EEOC goes on to broadly include threats, reprimands, negative evaluations, harassment, and other adverse treatment. In this regard, the EEOC guidance explicitly departs from case law, which requires that an adverse action materially affect the terms and conditions of employment. Although the EEOC concedes that petty and trivial annoyances are not actionable, it portrays virtually all adverse treatment by an employer as being reasonably likely to deter protected activity and, therefore, as retaliation regardless of whether the treatment materially affects the terms and conditions of employment.

The EEOC guidance also makes it clear that adverse actions can occur after employment ends. Examples of post-employment retaliation cited by the EEOC include interference with the individual's prospects for future employment, such as giving an unjustified negative job reference or informing a prospective employer about the individual's protected activity. Thus, the EEOC guidance expressly adopts the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), holding that Title VII prohibits employers from retaliating against former employees for engaging in protected activity. Likewise, the guidance makes clear that an employer that refuses to hire an individual because of its awareness that the individual filed a charge against a previous employer commits illegal retaliation.

Protection for individuals who participate in investigations or hearings under Title VII, the ADEA, the ADA, or the EPA is, according to the EEOC, even broader than the protection afforded to individuals who oppose discriminatory practices. This is because, while the opposition clause protects only those who protest policies that they reasonably believe in good faith are unlawful, the participation clause applies to all individuals who participate in the statutory complaint process. Here, too, the EEOC takes the position that retaliation against someone closely related to or associated with a person participating in complaint investigation or litigation is retaliatory. In other words, firing the husband of a witness or a close relative of an employee because that employee filed a charge would constitute illegal retaliation. Likewise, an employer who refuses to hire an individual because he or she testified against a previous employer commits illegal retaliation according to the EEOC.

Taking this interpretation to heart, in a recent opinion the U.S. Court of Appeals for the Fourth Circuit held that the participation clause of Title VII shields employees from the retaliatory acts of employers even when the employee's testimony is unreasonable, and/or demonstrates the employee's lack of good judgment. Glover v. South Carolina Law Enforcement Division, 1999 WL 12407 (4th Cir. 1999). Indeed, the Fourth Circuit pointedly rejected the imposition of a reasonableness standard on the participation of an individual in an investigation or court proceeding concerning employment discrimination.

Finally, the EEOC guidance takes the position that unlawful retaliation is shown when an employer takes an adverse action motivated in part because the employee engaged in protected activity. The EEOC directs its investigators to find cause to believe retaliation exists where there is credible evidence that retaliation was a motive for the challenged action, not simply the predominant or "but for" reason. Circumstantial evidence of retaliation may exist where the adverse action occurred shortly after the protected activity or where the person who took the adverse action was aware of the protected activity.


Whether federal courts will adopt the EEOC guidance on retaliation claims, en masse, remains to be seen. Nevertheless, a review of the provisions and interpretation within the guidance will provide important insights and instructions to employers that are seeking to avoid probable cause findings and ensuing litigation with respect to retaliation claims. While most employers recognize the duty to refrain from taking any direct or indirect retaliatory action against employees who have filed charges of employment discrimination, the EEOC guidance advocates an expansion of the potential liability for employers for unlawful retaliation arising out of routine workplace actions.