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

Opposition is a particularly important class of activities, given its an expansive definition and the great deference courts give to EEOC’s interpretation of opposing conduct.  Opposition “applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.”  This can be achieved in a wide variety of ways, including but not limited to: informing an employer of what the employee believes to be discriminatory action, refusing employer instructions to engage in discriminatory acts, filing a discrimination claim, answering questions regarding another employee’s discrimination claim, requesting a reasonable religious accommodation, etc.  Ultimately, whether an action constitutes opposition will depend on whether the “circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation,” an approach that relies on neither formal communications nor the use of key words (ex: harassment, discrimination) or phrases.  Finally, opposing conduct is a protected activity regardless of the party asserting it, including not only employees but managers, human resources personnel, or others.

Despite the broad definition of opposing conduct, there are still limitations on what actions are deemed acceptable in light of the employer’s need for “a stable and productive work environment.”  Generally, the manner of opposing conduct must be reasonable.  Forms of opposition deemed reasonable include candidly disclosing a forthcoming complaint to an employer, making complaints to such as union representatives or a lawyer, and complaining of conduct that, while not yet rising to the level of “severe or pervasive,” could rise to that level in the future.  In contrast, it is considered unreasonable for an employee to make “an overwhelming number of patently specious complaints,” harass or coerce a subordinate employee to give a witness statement in support of an EEOC charge, or attempt to change the contents of such a witness statement. Similarly, unlawful acts such as committing or threatening violence or destruction of property would likely be considered “unreasonable.”  In most cases, however, the determination of reasonableness will be fact-specific.

Critically, protected opposition “does not serve as license for the employee to neglect job duties. If an employee's protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”  However, opposition can still be protected even if the conduct opposed is ultimately deemed lawful, so long as the employee had a reasonable good-faith belief that the conduct violated EEO laws, or could do so if repeated.  This reflects a policy, supported by the courts, that "the victim is commanded to 'report the misconduct, not investigate, gather evidence, and then approach company officials.'"

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