An overview of the EEOC's updated Enforcement Guidance on Workplace Retaliation
The federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment. Individuals rely on the statutory prohibitions against retaliation, also known as "reprisal," when they complain to an employer about an alleged equal employment opportunity (EEO) violation, provide information as a witness in a company or agency investigation, or file a charge with the Equal Employment Opportunity Commission (Commission or EEOC).
So begins the latest "Enforcement Guidance on Retaliation and Related Issues" from the Equal Employment Opportunity Commission, which is the federal agency responsible for enforcing federal employment discrimination laws, including their provisions against retaliation. Those laws 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, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).
EEOC Chair Jenny R. Yang noted that “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”
The new guidance includes, among other things:
The scope of employee activity protected by the law;
The rules against interference with the exercise of rights under the ADA;
Detailed examples of employer actions that may constitute retaliation;
The legal analysis to be used to determine if the evidence supports a claim of retaliation;
Remedies available for retaliation.
Illegal workplace retaliation occurs when:
an employee engages in "protected activity," which includes either "participation" in an equal employment opportunity process or "opposition" to discrimination;
a "materially adverse action" is taken by the employer; and
there is a requisite level of causal connection between the protected activity and the materially adverse action.
In layperson's terms, what does that mean?
It's hard to boil it down as all of these keys terms have been the subject of substantial amounts of litigation and have specialized meaning determined either by courts or by the statutes themselves. But let's take a look at the three main components to look for in a retaliation situation: protected activity, adverse action, and causal connection.
Protected Activity
A request for a reasonable accommodation of a disability is one example of a "protected activity" under the ADA. Thus, retaliation against an employee for making such a request is illegal. Similarly, persons requesting religious accommodation are protected against retaliation for making those requests.
Other examples of "protected activity" -- in particular "protected opposition" -- cited by the guidance include:
A temporary custodian learns that she is being paid a dollar less per hour than previously hired male counterparts. She approaches her supervisor and says she believes they are "breaking some sort of law" by paying her lower wages than previously paid to male temporary custodians. This is protected opposition. Similarly, it would be protected opposition if she had said "I don't think I am being paid fairly. Would you please tell me what men in this job are being paid?"
A Materially Adverse Action
The anti-retaliation provisions make it illegal to take a "materially adverse action" against an employee because of protected activity. Citing Supreme Court precedent, the guidance notes that a "materially adverse action" "expansively covers any employer action that 'might well deter a reasonable employee from complaining about discrimination.'"
Examples of "materially adverse actions" as cited by the Supreme Court include:
the FBI's refusing to investigate "death threats" against an agent, 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, and excluding an employee from a weekly training lunch that contributes to professional advancement.
Retaliatory harassing conduct can also be considered a "materially adverse action" if the conduct would be sufficiently material to deter protected activity in the particular situation.
Third party reprisals -- or actions taken against someone who is closely related or associated with the complaining employee -- additionally could be considered "a materially adverse action." This seems to be at issue in this California case in the news where a professor at Stanford University alleged, among other things, that her husband lost his job there after she complained to the university about sexual harassment of her by another professor.
Causal Connection
Lastly, in retaliation cases, there must be a causal connection between the protected activity and the materially adverse action. In other words, the employer must have taken the adverse action because of the protected activity.
Sometimes the evidence around this is easy to find. Other times, not so much. In the latter situation, factors such as the timing of relevant events, evidence of how similarly situated employees were treated, or of the falsity of the employer's attempted justification for the adverse action may be relevant.
In addition to the enforcement guidance, the EEOC also simultaneously published a summary Q&A and a short Small Business Fact Sheet on Retaliation.
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