As the mother of an 11 year old and an 8 year old, I witness retaliation on a regular basis. Case in point: This morning at my house. Let me set the stage. Our elderly orange longhaired cat woke both my husband and I up at 4:53 a.m. (as my husband yelled, 7 precious minutes before the alarm) with the sounds of cat stomach distress. (If you have a cat, I need not say more; if you don’t, I can only relate that the sound is distinctive and unpleasant). Over breakfast this morning, I told my older daughter that perhaps this was proof that feeding the cat a portion of her uneaten lentils after dinner last night was not a good idea. I also suggested that she not disclose this unwise decision to her father, who left the house this morning of the first week of school still mumbling about his lost 7 minutes. My eight year old, rounding the corner, a gleam in her eye, says, “Oh, remember when you told dad about my decision to put my sticker collection on the back side of my dresser…PAY BACK!” And there you have it…simple retaliation. I’m going to get you back for what you did to me.
In my professional life, I am also very familiar with retaliation. Retaliation is one of the fastest growing EEOC Charges and often, in my opinion, one of the most viable. I have defended many employers in situations in which the underlying complaint of the employee was not strong, but the accused manager’s treatment of the employee after the complaint leads to a strong retaliation claim. Retaliation is a particularly difficult claim to manage because human nature is to be upset when someone accuses you of something, particularly something you did not do and you find abhorrent, like sexual harassment or racial discrimination. Human nature would be to treat that person differently. So often, managing retaliation is managing against human nature.
Despite the popularity and prevalence of retaliation claims, the EEOC had not issued guidance regarding retaliation since 1998. This week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues to replace its 1998 Compliance Manual section on retaliation. While the guidance is not earthshattering, I find the examples contained within the guidance to be particularly helpful for employers who are attempting to manage retaliation and assess the risk in taking an adverse employment action against an employee who has engaged in protected activity. The guidance also includes some additional ADA guidance that I will address separately in an upcoming post. For this post, I will address some of the most helpful examples provided within the guidance on retaliation claims generally.
The guidance begins by defining retaliation as occurring when an employer takes a materially adverse action because an applicant or employee has engaged in or may engage in protected activity, meaning actions in furtherance of the EEO laws the EEOC enforces. It then discusses each part of this definition in detail with examples.
First, it addresses what activities are protected, i.e., what activities constitute participation in an EEO process or opposition to discrimination. Participation, according to the new guidance, includes making a charge, testifying, assisting, or in any other manner being involved in an investigation, proceeding or hearing under the EEO laws. Participation includes filing or serving as a witness for an EEOC Charge or a lawsuit alleging discrimination. The guidance makes clear that participating in an internal investigation of an EEO-related complaint is protected activity.
In addition to participating in both internal and external investigations and complaints, an employee opposing any practice which is unlawful under EEO laws is also protected activity. However, the employee’s manner of opposition must be reasonable. The guidance provides examples of both reasonable and unreasonable opposition. Perhaps most importantly, the guidance makes clear that reasonable opposition includes the employee complaining to someone other than the employer, including union officials, coworkers, attorneys, and others outside the company. Calling public attention to alleged discrimination may also constitute reasonable opposition. This means that an employee’s facebook posts, picketing, and other very public complaints are not only likely protected under the NLRA but also under EEO laws. Reasonable opposition also includes an employee advising the employer of an intent to file a charge or lawsuit as well as complaining before the matter is actionable. This means that complaints about random comments that would not rise to the level of a “severe or pervasive” hostile work environment are likely protected. Unreasonable opposition includes making an overwhelming number of patently specious complaints, badgering subordinates to give witness statements, or attempting to coerce other employees to support a claim. Further, unlawful acts are not reasonable, such as threats of violence or actual violence to life or property. The guidance makes clear that “opposition to perceived discrimination 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.”
Additionally, the guidance clarifies that the protected activity must be based on a reasonable good faith belief, even if the conduct opposed or reported is ultimately deemed lawful. I find the second example in this section particularly of interest. The example is an employee who complains to her office manager that her supervisor failed to promote her because of her sex and instead promoted a less qualified man. On its face, this would appear to be a protected complaint. However, the example explains that if the job sought by the employee required a CPA license and she did not have one, but the selected employee did, then her complaint is not protected because she could not have had a “reasonable good faith belief” that she was discriminated against. This acknowledgement that some complaints are not made in good faith due to the absurdity of the complaint, not the employee’s known ill will, is significant for employers.
Second, the guidance discusses what constitutes a “materially adverse action” against an employee. Generally, it means, “any action that might well deter a reasonable person from engaging in protected activity.” These can be both work-related and non-work related actions. The examples include the expected actions: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge. They also include, however, threats, warnings, reprimands, transfers, negative or lowered evaluations, different levels of work, and workplace surveillance. Non-work related adverse actions include: the employer disparaging the employee to others or the media; scrutinizing work or attendance more closely than that of other employees; taking a materially adverse action against a close family member; or requiring re-verification of work status, making threats of deportation, or initiating other immigration related activity. Of particular note the EEOC states that retaliatory harassment can constitute a materially adverse action it if would deter protected activity, even if it were insufficient to meet the legal standard for a hostile work environment.
Third, the guidance addresses the necessity for a causal connection between the materially adverse action and the protected activity for a viable retaliation claim. The guidance recognizes that the causation standard for private sector and state and local government employers requires the evidence to show that “but for” a retaliatory motive, the employer would not have taken the adverse action. However, the guidance is quick to point out that the “but-for” causation standard does not require that retaliation be the only cause. The guidance suggests the following to be evidence of a causal connection: suspicious timing, oral or written statements expressing retaliatory motives (beware of email!), comparative evidence, i.e., treating the employee who has engaged in protected activity more harshly, or shifting explanations of the reason for the adverse action.
The bottom line is that employers must be aware of the risk associated with retaliation claims. Employers should make certain that they include an analysis of whether the employee has engaged in any protected activity in assessing the risk associated with an adverse employment action. Employers should also have a process by which they regularly educate supervisors about the risks associated with retaliation and particularly when the supervisor has been the subject of any protected activity. Make sure that your EEO and Harassment policies prohibit retaliation and provide a reporting mechanism. Further, employers should check back in with employees who have engaged in protected activity at regular intervals during the 12 months following the activity to confirm that the employee is comfortable in his/her position and does not have any concerns that would amount to a retaliation complaint. Document those check-ins. This process insulates you from retaliation claims in two ways: 1) You may learn about any retaliation and can address it before it becomes a claim, and 2) the employee would have a difficult time later claiming retaliatory harassment after confirming on multiple occasions that he or she had no concerns.
As with most employment-law issues, the guidance makes clear that retaliation claims are very fact specific. So if you are making a decision regarding an employee who has engaged in protected activity, consult with counsel to be certain you have adequately assessed the associated risk. And if you have a cat, keep her out of the beans!