EEOC’s new retaliation guidance should concern you – and here’s why
It’s about to get easier for employees to cry “retaliation!”
For the first time since 1998, the EEOC has issued enforcement guidance on what it considers workplace retaliation.
In a 76-page document entitled, “Enforcement Guidance on Retaliation and Related Issues,” the agency outlines the standards it plans to use to prove retaliation under civil rights and anti-discrimination laws.
So far, the guidance is just a proposal (the EEOC’s accepting comments on it until Feb. 24). But make no mistake about it, this is a clear indication of how the agency plans to play ball in this area for years to come.
The game plan
The plan in a nutshell: Make it as easy as possible to find retaliatory intent in every complaint the agency receives from employees.
While the guidance doesn’t make wholesale changes to how the EEOC views and seeks out retaliation, employers will want to pay attention to how it’ll make things easier for employees wishing to pursue retaliation charges.
Here are the specifics in the guidance employers must take note of:
What is retaliation?
The EEOC says a valid retaliation claim must consist of three elements:
- An employee’s participation in an protected activity — generally a complaint of discrimination or harassment.
- An adverse action taken by the employer/manager against the employee.
- A causal connection between the protected activity and adverse action.
The guidance doesn’t break new ground there, but the worrisome part is how broadly the EEOC defines each element.
1. ‘Protected activity’
The guidance says “protected activity” — or “opposition activity” — can occur explicitly or implicitly.
In other words, an employee can issue a direct complaint — or engage in “protected opposition” (e.g., by providing corroborating info during an interview as part of an investigation).
Also, the guidance points out that employees don’t have to prove their claims of workplace wrongdoing are accurate and true to win a retaliation charge. Employees’ complaints or opposition activities will be protected as long as their actions are based on reasonable, good faith that their assertions are accurate.
2. ‘Adverse action’
The EEOC’s view of what constitutes retaliation gets even broader still.
The guidance seeks to expand the definition of “adverse action” to include anything that could be reasonably likely to deter protected activity — even if it has no tangible effect on a person’s employment.
It also says adverse actions can be activities that aren’t work-related and take place outside of work.
Plus, the EEOC says an adverse action could be taken against a third party who is closely linked to a complaining employee.
Example: Threatening to terminate a spouse of a complaining employee or threatening to terminate a business relationship with a spouse’s company could both constitute adverse actions.
3. ‘Causal connection’
Perhaps the biggest — and most troublesome — change for employers in the guidance is its attempt to expand what constitutes a “causal connection” between a protected activity and adverse action.
It says the EEOC wants to adopt the position that retaliation can be established by creating “a ‘convincing mosaic‘ of circumstantial evidence” that would support the inference of retaliation.
Think of this as the “where there’s some, there’s fire” approach.
The EEOC even said to create a convincing mosaic it could go back years into a person’s employment history to find evidence of either a protected activity or an adverse action.
Example: The EEOC gave an example of a termination that occurred five years after an employee filed a discrimination lawsuit. It said even if a lengthy amount of time had passed between a protected activity and an adverse action, evidence other than temporal proximity could be revealed to establish a causal connection.
Best practices for employers
Thankfully, the news isn’t all bad for employers. The guidance also offered some best practices employers can employ to minimize the likelihood of retaliation violations.
Examples:
- Write an anti-retaliation policy that not only outlines what retaliation is, but also provides specific examples of retaliation that managers and supervisors may not have otherwise realized were legally actionable.
- Provide regular training to executives, managers, supervisors and employees on your anti-retaliation policy.
- Create a mechanism through which employees can report concerns and instances of retaliation.
- Provide a clear explanation that retaliation will be subject to discipline, up to and including termination.
- Preach civility, which can help reduce incidents of retaliatory behavior.
