EEOC Issues New Guidance On Retaliation Claims, Part 2: Protected Activities- Participation

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 second post in our series examining the new Guidance, and looks at the first type of protected activity, participation.

The anti-retaliation provisions relating to participation state that it is “unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the relevant non-discrimination statutes, including Title VII, ADEA, ADA, etc.  This extends to both administrative hearings and lawsuits, even in cases where the underlying allegation lacks merit or was not timely filed.  One of the notable changes in the Guidance is the further expansion of this protection to include internal EEO complaints and investigations, including the act of contacting a federal agency’s internal EEO Counselor under 29 C.F.R. § 1614.105.

The Guidance also rejects limiting the protections on participation based upon intent, noting that the Supreme Court has held “broad participation protection is necessary to achieve the primary statutory purpose of anti-retaliation provisions, which is ‘maintaining unfettered access to statutory remedial mechanisms.’” Based upon this reasoning, the EEOC rejects imposing a good faith requirement, and takes the position that “an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.”  This includes retaliation where an employee gives false testimony or brings a claim in bad faith.  However, while prohibiting retaliation by the employer for such conduct, the Guidance concedes that “[f]alse or bad faith statements by either the employee or the employer should be taken into appropriate account by the factfinder, investigator, or adjudicator of the EEO allegation when weighing credibility, ruling on procedural matters, deciding on the scope of the factfinding process, and deciding if the claim has merit.”

In sum, participation protects an employee who brings or takes part in any type of anti-discrimination investigation or proceeding.  Once such activities commence, the employer cannot take retaliatory action against the employee without exposing itself to further liability, and must act through the court or body overseeing the proceeding to punish any misconduct related to the employee’s participation.

The full Guidance can be found here:

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