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EEOC Issues Final Enforcement Guidance on Retaliation

by Martin Salcedo, Esq. - The Human Equation on 9/7/2016
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EEOC Issues Final Enforcement Guidance on Retaliation

Did you know that retaliation is asserted in nearly 45 percent of all charges received by the Equal Employment Opportunity Commission (EEOC)? In 2015, the EEOC received nearly 40,000 charges of unlawful retaliation, which may explain why, on August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues. And, as a general rule, if the EEOC is particularly concerned about a specific unlawful employment practice, employers should be too.

Unlawful retaliation generally occurs when an employer takes a materially adverse action because an individual asserts a right protected by the various equal employment opportunity (EEO) laws. For example, the following federal laws enforced by the EEOC prohibit retaliation and related conduct:

  • Title VII of the Civil Rights Act
  • the Age Discrimination in Employment Act (ADEA)
  • the Americans with Disabilities Act ( ADA)
  • the Equal Pay Act (EPA)
  • the Genetic Information Nondiscrimination Act (GINA)

An employee filing a claim of unlawful retaliation must establish three separate elements.

Protected Activity. There are two general categories of protected activity. The first, participation, refers specifically to raising a claim, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under an EEO law. Participation activities are broadly protected. For example, unlawful participation retaliation may occur even if the underlying allegation is not meritorious or was not timely filed.

The second category, opposition, refers to acts taken in opposition to an unlawful EEO practice. Opposition activity broadly includes the many ways one can explicitly or implicitly communicate opposition to perceived employment discrimination. The manner of opposition must be reasonable and must be based on a reasonable good faith belief that the conduct being opposed is, or could become, unlawful.

According to the EEOC, protected opposition includes:

  • complaining or threatening to complain about alleged discrimination
  • refusing to obey an order reasonably believed to be discriminatory
  • advising an employer on EEO compliance
  • resisting sexual advances or intervening to protect others
  • passive resistance (allowing others to express opposition)
  • requesting a reasonable accommodation for disability or religion

Materially Adverse Action. The anti-retaliation provisions make it unlawful for an employer to take a materially adverse action against an individual because of protected activity. A materially adverse action is any action that might well deter a reasonable person from engaging in protected activity. Depending on the facts and circumstances, materially adverse actions may include:

  • denial of promotion;
  • refusal to hire;
  • denial of job benefits;
  • demotion, suspension, discharge or transfer;
  • work-related threats, warnings or reprimands;
  • negative or lowered evaluations;
  • less prestigious or desirable work assignments, or
  • any other type of adverse treatment that in the circumstances might dissuade a reasonable person from engaging in protected activity.

Causal Connection. To be considered unlawful retaliation there must be a causal connection between a materially adverse action and the protected activity. Depending on the facts and nature of a case, an employee may be required to show that but for a retaliatory motive, the employer would not have taken the adverse action, or that retaliation was a motivating factor in the materially adverse action. This is typically the most contentious part of a retaliation case.

Sometimes, an employee is aided by an ill-advised statement in front of others or an email from the boss. Good news! We found a solution to your sexual harassment complaint. You’re fired. However, there usually isn’t a smoking gun. In these cases, an employee must rely on different pieces of evidence that may allow an inference that the materially adverse action was retaliatory, such as:

  • suspicious timing;
  • verbal or written statements;
  • evidence that a similarly situated employee was treated differently;
  • falsity of the employer's proffered reason for the adverse action; or
  • any other pieces of evidence which, when viewed together, may permit an inference of retaliatory intent.

It’s important to note that employees cannot immunize themselves from the consequences of poor performance or improper behavior by engaging in some form of protected activity. Employers are free to discipline or terminate employees for legitimate, non-discriminatory and non-retaliatory reasons, notwithstanding any prior protected activity.

Nevertheless, employers must proceed cautiously when dealing with employees engaging in protected activities. For example, if a manager recommends firing an employee who contacted the EEOC about discrimination, the employer should independently evaluate whether the adverse action is appropriate. Otherwise, an employer may be exposed to potentially substantial compensatory and punitive damages.

According to the EEOC, training employees is an effective way to reduce the likelihood of unlawful retaliation.  Please contact us if you would like more information about implementing an employee training program.

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Categories: 2016

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2/14/2017 10:36:06 AM #

How Can Employers Avoid the EEOC in 2017?

How Can Employers Avoid the EEOC in 2017?

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