The Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on workplace retaliation issues. This is the first update to the workplace retaliation policy since 1998 for what has become the most commonly reported complaint among employees in all sectors of employment in the U.S.  As employers know, retaliation is taking a materially adverse action against an applicant or employee because that person engaged, or may engage, in asserting his/her rights under any of the statutes enforced by the EEOC which include:

Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act (ADEA); Title V of the Americans with Disabilities Act (ADA); Section 501 of the Rehabilitation Act (Section 501); the Equal Pay Act (EPA); and Title II of the Genetic Information Nondiscrimination Act (GINA). Those who can allege retaliation include job applicants, and current or former employees.

While the new EEOC guidance does not alter the three basic elements of a retaliation claim, the new guidance does interpret those elements more broadly.  The elements are:

1. the individual engaged in protected activity (participating in an equal employment opportunity (EEO) process or opposing discrimination);
2. the individual is subject to a materially adverse action by the employer; and
3. the individual can show a causal connection between the protected activity and the materially adverse action.

According to the new guidance, a materially adverse action can be any action that might deter a reasonable person from engaging in protected activity. While most employers think of a materially adverse action as discrete acts that impact pay (denial of promotion, failure to hire, denial of benefits, demotion, suspension or discharge), the U.S. Supreme Court has also held that other actions designed to silence protected activity can be actionable: the filing of false criminal charges against a former employee, changing the work schedule of a parent who has caretaking responsibilities for school-age children, or excluding an employee from a weekly training lunch that contributes to professional advancement.  The EEOC goes further in its guidance and  notes that materially adverse actions can include disparaging an individual to the media, threatening reassignment, removal of supervisory responsibilities, making threats of deportation, taking a materially adverse action against a close family member, and terminating a union grievance process. Minor annoyances and trivial punishments that are not enough to dissuade an employee from engaging in protected activity do not constitute “materially adverse” action.

As to protected activity, the EEOC guidance discusses both of the two types of protected activities: participating in an EEO process and opposing conduct made unlawful by EEO law. The new guidance defines participating in an EEO process more broadly than filing an EEOC charge or serving as a witness in an EEOC investigation. The new guidance includes participation in an employer’s internal EEO process even if a charge has not yet been filed with the EEOC. Protected activity that is oppositional has generally been quite broad, and the new guidance notes this term’s breadth.  Any conduct designed to raise, reveal, or end actions that are believed to violate an EEO law is oppositional protected activity.  For example, an employer cannot retaliate against an employee for the following types of behavior:

• complaining about alleged discrimination;
• providing information in an internal investigation of an EEO matter;
• advising an employer on EEO compliance;
• resisting sexual advances or intervening to protect co-workers;
• complaining to management about EEO-related compensation disparities;
• refusing to obey an order believed to be discriminatory;
• requesting reasonable accommodation for a disability or religious reasons; and
• talking to coworkers to gather information for a potential EEO claim.

A causal connection can be shown by suspiciously close timing between the individual’s protected activity and the adverse action, or by proof that an employer has changed its stated reason for the adverse action. However, the employer’s absence of knowledge that the individual has engaged in protected activity, or the employer’s consistent assertion of a legitimate business reason for the adverse action, may defeat such causal connection, and place the burden on the employee to prove that the asserted reason is pretext for a retaliatory motive.

Any discussion of causal connection must include recent developments in the “cat’s paw” theory.  That theory allows an employee to establish causal connection not based on the retaliatory motive of the decision-maker – after all, the decision-maker may not have known of the protected activity.  But, if the employee can show that the information relied upon by the decision-maker – the information considered in taking the adverse action – was “tainted” by some other person who did have a retaliatory motive, the employee can establish the necessary causal connection.  This theory puts great pressure on decision-makers to be sure the information they are considering in taking an adverse action is accurate and not “tainted” in this manner.

The new EEOC guidance also specifically addresses the ADA’s prohibition against “interference” with an individual who exercises statutory rights under the ADA. Under the ADA, it is unlawful to coerce, intimidate, threaten or otherwise interfere with an individual’s exercise of ADA rights or with an individual who is assisting another to exercise ADA rights. Some examples of prohibited conduct include:

• coercing an individual to forego an accommodation to which he or she is entitled;
• intimidating an applicant from requesting accommodation during the hiring process by indicating that such a request will result in the applicant not being hired;
• issuing a policy or requirement that limits an employee’s rights to invoke ADA protections (i.e. a fixed leave policy that states, “no exceptions will be made for any reason”); and
• subjecting an employee to unwarranted discipline for assisting a coworker in requesting reasonable accommodation.

The issuance of the new workplace retaliation guidance does not mean that employers cannot discipline those employees who have engaged in protected activity for poor performance or violations of work rules. However, disciplinary action should only be taken for legitimate, non-discriminatory reasons. The discipline should be well documented in accordance with company policy.  In fact, one could argue that an employer’s failure to take disciplinary action against an employee who has engaged in protected activity – that is, failing to inform that employee that improvement is necessary and giving that employee the opportunity to improve with full knowledge of expectations – could be viewed as “materially adverse” as well.  Savvy employers know that it is this balance that is critical.

The EEOC’s new guidance also advises employers to engage in practices that will reduce the risk of retaliation violations, including:

• maintaining a written anti-retaliation policy;
• training all managers, supervisors and employees on the policy;
• providing guidance to managers or supervisors who have been allegedly involved in discriminatory actions as to how to deal with their personal feelings when carrying out managerial duties;
• checking in with employees, managers and witnesses during an EEO investigation to determine if there are any concerns regarding potential retaliation; and
• requiring decision-makers to document their reasons for taking adverse actions against employees and reviewing performance assessments to ensure a sound factual basis for adverse employment actions that is free from unlawful motivations.

If you need any assistance in assessing your company’s anti-retaliation policy and practices, please contact one of our Labor attorneys listed below.