For the first time since 1998, the Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on retaliation. Retaliation claims have been a growth industry over the last 18 years. Back in 1998 retaliation claims constituted 24 percent of all EEOC claims, behind both race and sex charges. Since then, however, retaliation has become the most common type of claim filed with the EEOC, leapfrogging to 45 percent of all EEOC charges filed in 2015.
The basics of a retaliation claim have not changed: retaliation occurs when an employer takes a materially adverse action against an employee because the employee engaged in protected activity. But the EEOC has taken the opportunity to offer detailed definitions and examples of each of these key terms. Not surprisingly, those definitions and examples are broad, oftentimes broader than the definitions used by courts in interpreting the laws.
For example, a “materially adverse action” can include things that have nothing to do with the employee’s conditions of employment, such as saying negative things about the employee in the media. Whereas many courts have determined that an “adverse action” must materially affect the terms or conditions of employment, the EEOC takes a broader view and concludes that “any action that might well deter a reasonable person from engaging in protected activity” is “materially adverse,” even if the action is unrelated to the employee’s work.
Of course, employers will ordinarily not complain to the media about an employee even if they disagree with the employee’s accusation of discrimination. Perhaps more challenging for employers is the EEOC’s position on frivolous filings with the agency. Somewhat amazingly, when it comes to participating in the EEOC process (for example, filing a charge or providing a statement to the agency), the EEOC takes the position that the participation is protected “regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct.” In other words, the participation is protected even if the employee knows he is lying about the employer! Under the EEOC’s position, an employee could intentionally file a frivolous discrimination charge that the employee knows is full of lies, and the employer could not terminate the employee because of that charge. Thankfully, some courts have rejected this argument, finding that “utterly baseless” filings are not deserving of protection.
While the EEOC’s aggressive positions may make compliance difficult for employers, the agency has at least provided some tools for employers to better understand their obligations. Among the items rolled out simultaneously with the new guidance, the EEOC has issued a list of “Promising Practices” that employers can consider implementing in order to try to avoid retaliation. In addition, the EEOC has also issued a Q & A, as well as a Small Business Fact Sheet. We encourage you to take a few moments to read through the EEOC’s materials to get a deeper understanding of the new guidance (and to make sure that your understanding of retaliation is guided by the EEOC’s broad definitions).
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