Earlier this year, we reviewed the Equal Employment Opportunity Commission’s (“EEOC”) proposed enforcement guidelines regarding retaliation claims. After a 30-day comment period and input from approximately 60 individuals and organizations, on August 25, 2016, the EEOC released the final version of the Enforcement Guidance on Retaliation and Related Issues (“Guidance”). The Guidance comes nearly 20 years after the release of the EEOC’s last guidance on retaliation, during which time the Courts and the EEOC have released significant decisions on the topic of protected workplace activity.
The EEOC protects individuals from retaliation by their employer when they “participate” in an EEO process or “oppose” discrimination. While “participation” is narrowly defined as filing a charge; or testifying, assisting, or participating in an investigation, proceeding, or hearing, it is broadly protected and does not require the individual to have acted in good faith.
The new regulations also attempt to delineate what constitutes “opposition” activity. Opposition activity is broadly defined as any activity by an individual in opposition to discrimination. Unlike the participate clause, however, the opposition clause is narrowly applied to those having a good faith belief that there has been a violation of the law and those who act reasonably in opposition.
The Guidance gives “protected activity” an expansive meaning and, not surprisingly, defers to the EEOC to interpret what conduct is protected. The Guidance lists a number of activities that are considered to be protected under the opposition clause:
- Complaining to management about discrimination against oneself or coworkers;
- Accompanying a coworker to the human resources office to file an internal EEO complaint;
- Taking a stand against an employer’s discriminatory practices by refusing to take action (e.g., refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons);
- Answering an employer’s questions about a discrimination complaint initiated by another employee; or
- Explicitly or implicitly communicating a belief that some workplace condition is or could become harassment or discrimination.
Employers should be aware that the opposition does not need to be in any particular form or specifically use words such as “harassment” or “discrimination.” An employee who files a broad complaint of “unfair” treatment in the workplace may be protected if the circumstances indicate that unfair treatment may include some discrimination based on a protected status. In addition, while the employee must have a good faith belief that discrimination has occurred, the new regulations make clear that the employee does not have to prove the underlying claim of wrongdoing to be successful in his or her retaliation claim.
Taking a cue from recent Supreme Court cases, the Guidance also broadens 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 the individual’s employment. Adverse action can be non‑work-related, occur outside of work, and can be associational (e.g., taken against a third‑party who is closely linked to a complaining employee). This is different from the adverse action needed to sustain a claim of discrimination, which must be substantial and work‑related (e.g., suspension, termination).
Retaliation claims continue to be the most frequently filed claims with the EEOC – almost 45% of charges filed yearly allege workplace retaliation. In light of this new Guidance as well as the EEOC’s recent efforts to expand the number of protected categories, employers can expect these numbers to rise. Employers should continue to update employee handbooks and provide training to ensure that employees, especially those in supervisory roles, are aware of what may constitute workplace retaliation.