EEOC Solicits Comments on New Retaliation Guidance

The Equal Employment Opportunity Commission has proposed new enforcement guidance for retaliation claims for the first time since 1998.

The agency says new guidance is necessary in light of several court decisions, including Univ. of Tex. SW Med. Ctr. v. Nassar (U.S. 2013), holding that retaliation claims under Title VII  “require proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Another important decision leading to the new guidance is Kasten v. Saint-Gobain Performance Plastics Corp. (U.S. 2011), in which the Supreme Court ruled that oral complaints can constitute protected activity to the same extent as written complaints.

The EEOC notes that retaliation charges have nearly doubled since 1998, when it last issued guidance on retaliation claims.

The draft guidance contains a host of best practices and recommendations, including:

  • Maintaining a written, plain-language anti-retaliation policy and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;
  • Training all managers, supervisors, and employees on the aforementioned policy;
  • Sending a message from top management that retaliation will not be tolerated; and
  • Emphasizing that those accused of EEO violations, and in particular managers and supervisors, cannot act on feelings of revenge or retribution.

The EEOC proposes to expand the definition of actions that oppose discrimination to include “implicit actions,” such as an employee merely answering questions about discrimination during an investigation.

Regarding adverse action, the EEOC emphasizes that the definition in the anti-retaliation provisions “is broader than an ‘adverse action’ under the non-discrimination provisions.” Retaliation includes any action that is “materially adverse”; i.e., could deter a reasonable person from engaging in protected activity. Importantly, no single employer action need be materially adverse to satisfy the definition, so long as the employer’s conduct, taken as a whole, could deter protected activity. “The standard can be satisfied even if the individual was not in fact deterred.”

The public is encouraged to comment on the proposed changes by February 24. Link to the EEOC press release and information on commenting here.

While EEOC guidance lacks the force of law, it is further evidence of the agency’s eagerness to find retaliation. MSEC will continue to monitor this development closely.