United States: EEOC Issues Updated, Expansive Guidance On Retaliation Claims

 Claims against a business by an employee or former employee for retaliation under Title VII or other fair employment practices statutes enforced by the EEOC are common and dangerous. In announcing the EEOC's newly released final Enforcement Guidance on Retaliation and Related Issues (Enforcement Guidance), Commission Chair Jenny R. Yang recognized that a retaliation claim is "asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination."

It is all too common to have a situation where the underlying claim of discrimination that was the subject of the initial complaint is without merit, but the retaliation did in fact take place. One reason this occurs is because it is human nature for a manager to be frustrated by an employee who the manager believes falsely accused him of being a racist or sexist, or that is perceived as just stirring up trouble. As such, it is important for employers to be vigilant in taking steps to ensure that an employee who exercises a protected right, such as by complaining of perceived discrimination, or participating in an investigation of a complaint made by another, is not subjected to conduct that can be perceived as retaliatory. Prevention of these claims is preferable to having to defend a claim.

The new EEOC Enforcement Guidance replaces guidance issued in 1998. The Enforcement Guidance also addresses the separate "interference" provision under the Americans with Disabilities Act, which goes beyond the retaliation prohibition and prohibits coercion, threats or other acts that interfere with the exercise of ADA rights.

RETALIATION

Retaliation that is a violation of Title VII occurs when an employer takes a materially adverse action because an employee asserts rights protected under Title VII. "Materially adverse" actions by an employer sufficient to support a retaliation claim are defined broadly after the U.S. Supreme Court's opinion in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), and include any action that might deter a reasonable person from engaging in protected activity.

An analysis of whether a particular action is retaliatory is a factually specific analysis. In the Enforcement Guidance, the EEOC is taking an expansive interpretation of protected conduct that can support a claim for alleged retaliation. There are two types of protected conduct under Title VII:

• An employee who "participates" in a complaint that the employer has violated a protected right, whether as the complainant or as a witness, is protected. The EEOC has taken the position that this protection not only applies to formal complaints to the EEOC or a lawsuit but also includes internal complaints. As the EEOC further takes the position that there is no requirement that the complaint be made in good faith to be protected conduct under the "participation" protection, this is an important distinction, and one not uniformly recognized by the federal courts.
• The second form of conduct protected from retaliation is "opposition" to conduct protected under Title VII. An employer is prohibited from retaliation against an employee who communicates opposition to a perceived violation of Title VII or other fair employment practices statute. Opposition can be communicated by the employee informally, and is protected so long as the employee raises a concern that can reasonably be interpreted as opposition to a protected right. Here, while the EEOC agrees that such a complaint must be reasonable, the examples given in the new Enforcement Guidance reflect its intention to broadly interpret this obligation. For example, the EEOC opines that reasonable opposition can include complaints contained in critical letters written to customers so long as the communications are not so disruptive or excessive as to be unreasonable. Protection from opposition is limited to employees who act with a reasonable good faith belief that the conduct opposed is unlawful or could be unlawful if repeated. Here, the EEOC opines that "opposition" is protected even if the conduct opposed is not recognized as unlawful by the courts, but the EEOC has adopted the interpretation that it is unlawful.

The EEOC also takes the position that taking adverse action for discussing compensation or complaints about pay "may constitute protected action under the EEO law, making employer retaliation actionable based upon the facts of a given case." This is of note, as the similar prohibition under the NLRA for concerted action generally only provides protection for non-supervisory employees.

PROMISING PRACTICES

The new Enforcement Guidance does contain a section entitled "Promising Practices," which focuses on steps employers can take to prevent claims of retaliation.

Recommended practices include:

• Strong written policies prohibiting retaliation with examples as to conduct that would be actionable because it would deter a reasonable person from engaging in protected activity. Policies also should include a separate obligation to report perceived retaliation with an emphasis that retaliation will lead to disciplinary action.
• Retaliation prohibitions included in formal EEO training.
• Additional support to supervisors in managing an employee who has engaged in protected conduct to minimize the risk that appropriate workplace feedback or disciplinary action can be perceived as retaliatory.
• Follow-up by human resources with employees who have made complaints of protected conduct routinely to ensure not only that the situation leading to the complaint is ideally improved but also that perceived retaliation has not occurred and that the employee is aware of how to report any perception of retaliation. These follow-up meetings should be documented.
• Review of tangible employment actions before they are finalized for legitimate, nondiscriminatory and non-retaliatory support for the decision. Such reviews should be conducted by human resources or other employees trained in EEO laws.

TAKEAWAY

With the new Enforcement Guidance, the EEOC is continuing its efforts to promote an aggressive interpretation of the discrimination laws it has been charged with enforcing. While the federal courts may not always agree with the EEOC's aggressive interpretation of what constitutes legally actionable retaliation, it is important for employers to be aware of the EEOC's expansive position on these dangerous claims.

Wilson Elser's national employment practices team lawyers are available to assist employers in managing and ideally avoiding these potentially dangerous claims.

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