On August 25, 2016, 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. This is the fourth post in our series examining the new Guidance, and it looks at what it means for an employer to take materially adverse action against an employee.

Broadly speaking, anti-retaliation provisions prohibit materially adverse actions against individuals who undertake protected activities, i.e. participation and opposition as discussed in the previous two posts.  This covers any employer action that "might well deter a reasonable employee from complaining about discrimination," and need not be an insular act but part of a larger series of actions when taken as a whole. Although "normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence," the standard can be satisfied even if the individual was not in fact deterred.

The Guidance provides numerous examples of materially adverse actions, divided into two broad categories: work related and non-work related.  Work related adverse actions include straightforward examples such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge, as well as less direct actions such as work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, and transfers to less prestigious or desirable work or work locations.  Courts have held this includes formal reprimands, which “can reduce an employee's likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy.”  In contrast, a non-worked related action can have “no tangible effect on employment… as long as it might well dissuade a reasonable person from engaging in protected activity.”  Though the Guidance doesn’t provide explicit examples of non-work adverse actions, the “additional examples” section includes acts such as “disparaging the person to others or in the media… making false reports to government authorities… [or] taking (or threatening to take) a materially adverse action against a close family member.” As with the other analyses discussed thus far, this is largely a fact-specific determination.

The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm