Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”). This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance. Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. In this series of posts, we will examine the new set of guidelines and what they mean for employers and employees that may be involved in such suits. This first post will provide an overview of retaliation claims and the basic standards and terms.
The Guidance states that “[r]etaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces.” This includes a variety of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act. Retaliation is now the most frequently alleged basis of discrimination, and accounts for between 42% and 53% of all EEOC violation findings, depending on the specific year.
Broadly speaking, there are three elements to a to making a retaliation claim: (1) a protected activity, in the form of either "participation" in an EEO process or "opposition" to discrimination; (2) a materially adverse action taken by the employer; and (3) a sufficient causal connection between the protected activity and the materially adverse action. Whether these elements are present is a highly fact-specific determination that will largely depend on the type of activity being retaliated against, and the nature of the alleged retaliation. Notably, these protections do not prohibit employers from disciplining or terminating employees for legitimate, non-discriminatory, non-retaliatory reasons.
If an employer intends to take a materially adverse action against an employee, it may be prudent to develop an independent review process to determine whether such action is appropriate. This will reduce the chance of an employer being found liable for retaliating against an employee. This and other forms of liability insulation will be discussed more towards the end of this series.
The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm