On January 21, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued its “Proposed Enforcement Guidance on Retaliation and Related Issues” (“Guidance”) for public comment. The EEOC’s last Guidance on this topic was May 1998, so this is a major update. As expected, it contains employee-friendly positions that will no doubt open the doors to more retaliation complaints.
Title VII’s Participation Clause. Title VII of the Civil Rights Act of 1964, as amended, prohibits not only status-based discrimination (discrimination based on characteristics), but also retaliatory discrimination against individuals who “participate” in discrimination investigations and who may “oppose” discriminatory practices or behavior. The EEOC’s position is that internal complaints to employers before a discrimination charge is filed with the EEOC is encompassed within the “participation” clause of Title VII. This breaks with some current judicial interpretations of the “participation” clause and if this gains traction in the courts, it will lead to more retaliation charges.
Retaliation Causation. To prove retaliation, an employee needs to show that “but for” his protected participation/opposition to discrimination, that his employer would not have retaliated against him. This is a high standard. The EEOC has now opined that an employee can prove causation by mustering various types of circumstantial evidence, such as suspicious timing, verbal or written statements, comparative evidence that similarly-situated employees who did not complain were treated better, the falsity of the employer’s reason for the adverse action against the employee, and any other evidence from which an inference of retaliatory intent might be drawn.
Since retaliation complaints are now the most frequent type of discrimination charge, employers must now double their efforts to stave off behavior that could be construed as retaliatory. Best employer practices include:
- Employment policies with clear anti-retaliation language, with examples of retaliation, steps to avoid actual or perceived retaliation, reporting mechanisms, and consequences for engaging in retaliation;
- Training managers and supervisors about anti-retaliation policies and behavior that could appear retaliatory, a zero-tolerance policy for retaliatory behavior, and encourage better workplace civility; and
- Ensure that employment decisions are free of retaliatory bias by having other decision-makers review employment decisions