Nearly 45% of all charges filed with the EEOC allege some form of unlawful retaliation. The EEOC has now issued proposed Guidance on what constitutes unlawful retaliation. The proposed Guidance identifies a three-step analysis:
- An employee must have engaged in a protected activity;
- The employee must have suffered an adverse employment action; and
- The adverse employment action was taken in response to the protected activity.
Public comments were due by February 22, 2016.
The Guidance will be finalized once these comments have been reviewed.
Protected Activities
The Guidance takes a broad view of what constitutes “protected activity.” An employee may be protected for calling public attention to claimed discrimination through such activities as:
- Letter writing;
- Picketing; or
- Sending critical communications to a customer, provided the activity is not unreasonably disruptive or excessive.
An employee being harassed will be deemed to have engaged in “protected activity” if she resists a manager’s harassing actions and tells him to stop. If the manager then takes or recommends an adverse employment action against the employee, that action could be found to be unlawful retaliation, even though no complaint was ever made by the employee to any other member of management.
Under the so-called “manager rule,” some courts have held that a manager is not deemed to be engaging in a “protected activity” if that manager reports or tries to correct what he perceives to be illegal workplace discrimination as part of his job duties. By contrast, the Guidance states that a manager’s internal compliance advice concerning civil rights laws can be a “protected activity” and that the manager cannot be punished for rendering such advice.
What if an employee makes a broad or ambiguous complaint of unfair treatment to management without indicating a belief that this treatment was due to his race, age, etc.? Such a non-specific complaint will be viewed by the EEOC as being a “protected activity” if the complaint would “reasonably have been interpreted as opposition to employment discrimination.”
Retaliatory Actions
An adverse employment action normally must be taken by an employer in response to an employee’s “protected activity” for unlawful retaliation to exist.
However, the Guidance cites a number of instances in which nonemployment-related actions could be found to be “adverse employment actions.” These could include:
- The employer disparaging the complaining employee to third parties or in the media; or
- The employer making false reports about the employee to government agencies.
Such acts, according to the Guidance, would likely deter “protected activity” and thus be unlawful.
A common defense to a retaliation claim is that the passage of time between an employee’s protected activity and an employer’s adverse action is not enough to prove retaliation unless there is further evidence of a retaliatory motive. The Guidance does not even make a passing reference to this common defense. Instead, the Guidance gives examples of how a long time period, such as 14 months, may not be enough to disprove a retaliation claim where there is other evidence of a retaliatory motive.
Takeaways
Employers must recognize that certain employee words and actions may be legally protected.
Employers should not take adverse actions against employees who engage in such “protected activities.” Leaders should be trained to focus on employees’ job performance or misconduct when contemplating corrective action and to not retaliate against employees for raising allegations or concerns about workplace discrimination or harassment.