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 sixth post in our series, and it examines how employers can overcome claims of retaliation by employees.

The Guidance provides three circumstances under which an employer can defeat a retaliation claim brought by an employee, even where a protected activity and materially adverse action occurred.  The first and most basic defense is that the employer was unaware of the protected activity.  As causation for retaliation requires showing that the materially adverse action was taken in response to the protected activity, the employer (or relevant decision maker) must have known of the prior protected activity.  Absent such knowledge, there can be no retaliatory intent.

The second basis for defeating a retaliation claim is to show that there were legitimate, non-retaliatory reasons for the challenged action.  The Guidance provides several examples of what such reasons may be.  These include, but are not limited to: (1) poor performance by the employee, (2) in cases of alleged hiring or promotion discrimination, inadequate qualifications for the position sought, (3) inferior qualifications or interview performance relative to the selected individual, (4) misconduct, ranging from theft to insubordination to repeated tardiness, and (5) reduction in workforce or downsizing.  These facts are not defenses or attempts to disprove retaliation, as proving retaliation remains the employee’s burden.  Rather, these facts can serve to support the employer’s proffered explanation for its actions.

Finally, in cases being decided under a “but-for” standard of causation, the employer may defeat the retaliation claim if it can show that the adverse action would have occurred regardless of any retaliatory motive.  The provided example describes a circumstance where the employer admits to being “mad” at the terminated employee, but the employee also admits that she was fired for repeated violations of worker safety rules and had been warned prior to filing her claim that continued violations could result in termination.  Thus, even where there may be evidence of retaliatory motive, but-for causation had not been demonstrated.

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