If the Equal Employment Opportunity Commission (EEOC) has its way, employers will now be vulnerable to an even broader range of lawsuits for unlawful retaliation, pursuant to the recently released draft update to the EEOC's 1998 enforcement guidance on retaliation. The EEOC draft update primarily (i) expands the scope of activities protected under the EEO statutes and (ii) broadens the range of employer responses that would be "retaliation" under those statutes.
Retaliation already is the leading subject of EEO charges. In 2014, charging parties alleged retaliation in nearly 43% of the charges with the EEOC.
The EEOC draft update is based upon the EEOC's interpretation of a number of recent court cases about retaliation. Although an EEOC Guidance is not binding upon the courts, this draft update provides a useful glimpse into how the EEOC will be investigating and litigating claims of retaliation, and how employers can avoid possible pitfalls.
The federal EEO statutes, such as Title VII, the ADA, and the ADEA, prohibit retaliation for engaging in a protected activity under those statutes. Protected activities are typically categorized as either (i) participating in an EEO process or (ii) opposing a practice made unlawful by one of the EEO statutes. Participation in an EEO process may include providing witness information, or otherwise assisting in an EEO or internal company investigation. Opposing a practice made unlawful by an EEO statute may include, for example, complaining to one's employer regarding alleged discrimination, resisting unwanted sexual advances, or refusing to obey managerial orders reasonably believed to be discriminatory.
The EEOC's draft updated Guidance greatly expands the scope of employee activity protected under the EEO statutes. For example, in the past, courts regularly held that an employee was not "participating" in an EEO process by contributing to an internal company investigation unless the investigation was in conjunction with a formal EEO charge. According to the updated Guidance, however, participation in an entirely internal company investigation, absent any formal EEO charge, would be considered protected activity.
Further, under the updated Guidance, an employee may allege retaliation against his or her employer where a family member working for the same employer suffers adverse employment action as a result of the employee's own protected activities.
Finally, the draft updated Guidance also interprets Title VII's definition of an employer's "adverse employment action" to reach beyond hiring, firing, and promotional decisions. According to the EEOC's proposals, an employee may justifiably assert a claim of retaliation under Title VII for more subtle adverse employment actions, such as reprimands, threats, transfers to less desirable work locations, negative evaluations, or assignment of less desirable work.
The EEOC's expanded interpretation of retaliation undoubtedly will be challenged in numerous lawsuits and analyzed by judges in those cases. In the meantime, employers can continue to minimize their risk of being sued for retaliation and of being found liable by:
- Maintaining a written, plain-language anti-retaliation policy that provides examples of prohibited conduct, a reporting mechanism for voicing concerns, and a clear disclaimer that retaliation will lead to disciplinary action.
- Training managers and employees about the company's anti-retaliation policies, and how to effectively avoid pitfalls.
- Monitoring internal EEO investigations to identify and, if necessary, address concerns regarding possible retaliation.
- Scrubbing significant employment actions prior to implementation to avoid retaliation.
- Enforcing workplace rules and disciplinary procedures in a consistent manner to avoid any inference of retaliation.
- Documenting disciplinary measures to create a record of the employee's misconduct, and the employer's consistent application of its disciplinary procedures.
The EEOC's draft updated Guidance is open for a month-long period of public comment. We will keep you advised.
If you have any questions, please contact the authors, David A. Katz and Douglas B. Mishkin.