EEOC’s Proposed Retaliation “Guidance” Muddies the Waters for Employers

For the first time in 18 years, the Equal Employment Opportunity Commission (EEOC) has offered proposed revisions to its official guidelines on workplace retaliation. In its proposed revisions, the agency expresses a very broad view of what constitutes actionable retaliation under the applicable equal employment laws. One of the most noteworthy revisions is that the EEOC has expanded its view of the evidence or facts that an employee may show to establish a retaliation claim, and that expansion will make it easier for employees to assert speculative retaliation claims that lack significant factual basis.

In general, an employee claiming retaliation has to show that:

• He or she engaged in a protected activity, like reporting harassment or objecting to perceived discrimination
• He or she experienced an adverse employment action, like being terminated
• His or her protected activity caused the adverse employment action

While these criteria are not new, the third part of a retaliation claim, the “causation” element, has historically been the most difficult part of a retaliation claim for an employee to prove. Typically, employees asserting a retaliation claim have been required to prove that their protected activity caused the adverse employment action by showing that the employer both: (a) knew about the protected activity; and (b) the adverse employment action occurred very soon after the protected activity. Many employees’ claims have failed because they have not been able to establish that the decision-makers had actual knowledge of their protected activity.

The EEOC’s proposed guidance makes things easier for employees. Under the proposal, to support the causation element, an employee does not necessarily need to satisfy the two prior requirements. Instead he or she “may discredit the [employer’s] explanation and demonstrate a causal connection between the prior protected activity and the … adverse action by… [establishing] a ‘convincing mosaic’ of circumstantial evidence that would support the inference of [retaliation].” This broad, nebulous standard — which does not really elaborate on what “convincing mosaic” means — will be problematic for employers facing an EEOC retaliation charge and/or investigation, making such claims even more difficult to defend against.

While the EEOC’s guidelines are not binding law, and are technically intended to inform its staff members’ investigations of future retaliation claims, this fact alone is not heartening. The number of retaliation charges lodged against both private and federal employers has nearly doubled since 1998 — the last time the EEOC updated its retaliation guidelines — and the EEOC’s revised guidance is not likely to deter future retaliation charges. Instead, the proposed revised guidelines show the agency edging toward policies that will make it more and more difficult for employers to legitimately discipline or terminate employees without increasing their exposure to retaliation charges, and retaliation claims certainly appear to be a focus area for the EEOC going forward.

There are, however, proactive steps all employers can take to educate their workforce and bolster their discipline and discharge decisions. These include, but are not limited to:

• Establishing and maintaining a plainly written anti-retaliation policy, including practical, relatable examples of what to do and what not to do when disciplining or terminating employees
• Providing all employees with training that includes real-life examples of actions that may constitute retaliation, but which managers and non-managers alike may not recognize as retaliation
• Enacting an informal reporting and resolution mechanism for employees to use when they have concerns about retaliation in the workplace
• Making efforts to encourage and maintain an expectation of top-down workplace civility, which may prevent or mitigate retaliatory behavior when those emotions occur
• Documenting thoroughly the basis for any discipline or discharge decisions that need to be taken against an employee who has complained

The EEOC will accept public input and comment on its proposed revised guidance until February 21, 2016.