Nearly half of all claims filed
with the U.S. Equal Employment Opportunity Commission (“EEOC”) address
allegations of retaliation. Retaliation occurs when an employer takes
a materially adverse employment action against an employee for engaging in
protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”),
the Age Discrimination in Employment Act (“ADEA”) or any of the other federal
anti-discrimination laws administered by the EEOC. Generally, protected activity consists of
either filing an EEOC Charge of Discrimination, or opposing unlawful employment
actions.
The EEOC has now issued its final
Enforcement Guidance on Retaliation to replace its 1998 Compliance Manual
section on retaliation. In the 18 years since the 1998 guidelines, the United States
Supreme Court has issued numerous rulings concerning retaliation claims, and
the new enforcement guidelines are intended to assist employers in addressing
retaliation claims and avoiding liability.
Not surprisingly, the EEOC’s new guidelines take a very
broad and expansive view of what constitutes protected activity for purposes of
triggering a retaliation claim. For instance, the EEOC states that “sometimes there is retaliation before any
‘protected activity’ occurs. For example, an employment policy that discourages
the exercise of equal employment rights could itself be unlawful.” Other examples of protected activity listed
in the guidelines include:
·
Taking
part in an internal or external investigation of employment discrimination,
including harassment;
·
Filing
or being a witness in a charge, complaint, or lawsuit alleging discrimination;
·
Communicating
with a supervisor or manager about employment discrimination, including
harassment;
·
Answering
questions during an employer investigation of alleged harassment;
·
Refusing
to follow orders that would result in discrimination;
·
Resisting
sexual advances, or intervening to protect others;
·
Reporting
an instance of harassment to a supervisor;
·
Requesting
accommodation of a disability or for a religious practice; or
·
Asking
managers or co-workers about salary information to uncover potentially
discriminatory wages.
In its guidelines, the EEOC stresses that the protections against
retaliation apply not only to current employees (full-time, part-time,
probationary, seasonal, and temporary), but also to applicants and to former
employees. The guidelines also note that
the protections apply regardless of
an applicant or employee's citizenship
or work authorization status. The
guidelines offer the following examples:
·
A
supervisor cannot refuse to hire an applicant because of his EEOC complaint
against a prior employer, or give a false negative job reference to punish a
former employee for making an EEOC complaint.
·
An
employer suspects a worker is undocumented but does not attempt to verify her
authorization to work as required by the immigration laws. If the worker raises
an EEOC complaint, such as sexual harassment or national origin discrimination,
and the employer then threatens to expose the worker's immigration status as
punishment for complaining about EEOC violations, the employer would violate
the ban on retaliation.
The EEOC
guidelines make it clear that an employee does not have to be terminated or demoted
to have a viable retaliation claim, and much lesser employment actions can be
enough to impose liability. The EEOC’s
standard is that an employer is not allowed to do anything in response to protected
activity that would discourage someone from resisting or complaining about
future discrimination. For example, depending on the facts of the
particular case, it could be retaliation because of the employee's protected activity
for an employer to:
·
reprimand
an employee or give a performance evaluation that is lower than it should be;
·
transfer
the employee to a less desirable position;
·
engage
in verbal or physical abuse;
·
threaten
to make, or actually make reports to authorities (such as reporting immigration
status or contacting the police);
·
increase
scrutiny;
·
spread
false rumors, treat a family member negatively (for example, cancel a contract
with the person's spouse); or
·
take action
that makes the person's work more difficult (for example, punishing an employee
for an EEOC complaint by purposefully changing his work schedule to conflict
with family responsibilities).
The EEOC guidelines
acknowledge that engaging in protected activity does not shield an employee from discipline or discharge.
Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory
reasons that would otherwise result in such consequences. It is not
uncommon for poorly performing employees, aware that they face discipline or
termination, to suddenly file a baseless EEOC Charge or assert frivolous claims
of discrimination as a form of “job insurance”, knowing that employers will
then be worried that justifiable actions might be perceived as
retaliatory. Examples of non-retaliatory and non-discriminatory
reasons for discipline or termination include poor job performance or low
productivity, or where the employee's actions in opposing discrimination
interfered with job performance or involved something illegal or disruptive to
the workplace.
To avoid retaliation
claims, the EEOC advises maintaining a written and easily understood
anti-retaliation policy, combined with training. Supervisors and managers may not know that certain acts are
considered illegal retaliation or interference. Employees may benefit from
instruction on how to handle tough situations where retaliation or interference
is likely to occur. The importance of
documentation and review of employment actions is also stressed. The guidelines suggest that 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.
