EEOC’s Guidance on Retaliation is Final – Prepare the Floodgates

The Equal Employment Opportunity Commission (EEOC) has finalized its Enforcement Guidance on Retaliation and Related Issues, and employers can now look forward to more claims and increasingly aggressive government enforcement.

We wrote in February when the Guidance was proposed that the EEOC was threatening to expand employee protections.  That threat is now a reality through a more liberal interpretation of protected behavior and a diminished requirement for good faith in bringing complaints.

Two Forms of Protected Activity

The Guidance identifies two types of protected behavior.  The first is “participation”, which encompasses an individual’s role in the processing of a complaint that the employer has violated one or more of the federal discrimination laws.  Participation includes not only the person filing the complaint but also anyone who serves as a witness (voluntarily or otherwise) or who assists or is involved in the matter in any way.

Under the EEOC’s interpretation, participation is protected regardless of the claim’s validity or the credibility of a witness’s testimony or input.   Therefore, the Guidance sharply warns employers not to pre-judge the merits of an allegation or the credibility of a participant, noting that “an employer can be liable for retaliation if it takes it upon itself to impose consequences for actions taken in the course of participation.”

The Guidance also explains that “participation” protection is no longer limited to just formal administrative charges or lawsuits.  Instead, it also covers internal or contractual complaint processing, matters that previously were only encompassed within “opposition” protection (the second type of protected activity, as discussed below).  This is not just semantics – it reflects the EEOC’s intention to relieve employees from having to show good faith when invoking the employer’s policies on harassment or discrimination.   This offers a clear path to the serial complainants, the conspiracy theorists and those with ultra-delicate dispositions to file complaint after complaint with the employer without fear of negative consequences.

The EEOC’s position in this regard differs from several courts, and the U.S. Supreme Court has not yet ruled on the issue.  Therefore, employers faced with aggressive EEOC enforcement efforts in participation cases can take heart that a court might very well reject the EEOC’s conclusions.  Of course, this will happen only after a long, frustrating and costly investigation by an EEOC intent upon imposing their interpretation throughout the judiciary.

Opposition Protection

The second form of behavior that is protected from retaliation is “opposition” to a practice forbidden by applicable discrimination laws.  This opposition can be communicated formally or informally, and need not even mention words like “harassment”, “discrimination” or “illegal”  as long as the employee expresses a concern that can reasonably be interpreted as opposition to EEO violations.

Here, the Guidance imposes a reasonableness requirement but the standard is relatively modest.  In this regard, the Guidance requires that the method of opposing the discriminatory practice must be reasonable but then provides an expansive list of what meets this test.  The list includes complaints about perceived discrimination to union officials, coworkers, or attorneys.  It also encompasses public protests, picketing and even critical letters written to customers as long as the communications are not disruptive or excessive.

The Guidance also requires that the opposition must be based on a reasonable good faith belief that the employer practice being opposed violates, or could violate, the discrimination laws. Even if the challenged action is ultimately proven to be lawful, the protection still will apply as long as the good faith requirement is met.  The practice being opposed need not be an actual violation; it could be just a single harassing incident that is insufficient to constitute harassment by itself but is, or could be, a bona fide component of an illegal pattern of hostile behavior.

Promising Practices

Recognizing that there is not a single “best” practice applicable to every employer and every complaint, the EEOC offered the following list of “promising practices” to assist employers in avoiding retaliation liability:

  1. Maintaining a written anti-retaliation policy;
  2. Training all managers, supervisors, and employees on the employer’s written anti-retaliation policy;
  3. Providing anti-retaliation advice and individualized support for employees, managers, and supervisors;
  4. Proactive follow-up while EEO mattes are pending to insure that retaliation is not occurring; and
  5. Review of all employment actions (e.g. terminations, discipline, salary decisions) to insure that retaliation played no role.

Bottom Line

As noted above, employers will sleep better at night if they remember that an “EEOC Guidance” does not represent the law in any regard.  The true arbiters of what the law actually means are the courts, and the EEOC readily acknowledges in the Guidance that agency’s more aggressive views are not yet embraced by the judiciary.

On the other hand, even if the courts ultimately find that the EEOC is overreaching, an employer charged with retaliation is still going to have to undergo an intensive investigation and a possible cause finding as the EEOC puts its interpretation into play.  This could mean an expensive and time-consuming process, first through the administrative forum and then in court, that diverts valuable time and resources from more productive endeavors.

Regardless of whether and to what extent the Guidance ultimately is accepted, employers are well-advised to protect against retaliation claims through careful and appropriate responses to complaints about discrimination and harassment, and by insuring that employment actions are based on legitimate and non-discriminatory factors, especially including those actions affecting employees who have engaged in protected activities.

Now that employees can bring discrimination claims without having to show much good faith, we can expect more claims any day now.  Let’s be prepared.

Critical developments such as this will be the focus of the Felhaber Labor & Employment Seminar on October 28, 2016.  You can view the seminar agenda and .access our online registration by clicking here.