The new Enforcement Guidance on Retaliation and Related Issues proposed by the Equal Employment Opportunity Commission (EEOC) poses a threat of more retaliation claims under federal discrimination laws (I.e. Title VII, the ADA and the ADEA) and increased liability for employers.
This new Guidance offers the EEOC’s views on what constitutes illegal retaliation, and much of it is nothing new. However, they do introduce a seismic shift in the standard for proving illegal retaliation. What was once a precise, focused analysis of causation is now a hodgepodge of subjective factors making it more difficult for employers to prevent retaliation claims while allowing employees to press forward with scattershot allegations.
A retaliation claim requires proof that (1) the employee engaged in a protected activity, such as reporting harassment or objecting to perceived discrimination; (2) the employee suffered an adverse employment action; and (3) a “causal connection” between the two.
Comparing the Old and New Standards
Currently, proof of a causal connection is a “but for” test – the employee must show that but for the protected activity, the adverse employment action would never have occurred. This often depends showing that employer knew about the protected behavior and that the adverse action followed very swiftly thereafter.
Under the new EEOC Guidance, the employee need only present a “convincing mosaic of circumstantial evidence that would support the inference of [retaliation].” This “mosaic” can include not only the more obvious types of employer actions (e.g. termination, demotion or disciplinary action) but also behaviors such as:
- “Badmouthing” the employee;
- Threatening to reassign the employee;
- Micromanaging the employee’s work;
- Removing job responsibilities;
- Abusive physical or verbal behavior; or
- Any other behavior that might deter a reasonable person.
In fact, the EEOC now seems unconcerned with whether the employee in question actually felt threatened or deterred from pursuing further protected activities. Instead, it will be enough that a reasonable person (whoever that might be) would have been affected by the employer’s behavior. The agency also seems intent on forging a path away from a recent United States Supreme Court decision announcing continuing support for the “but for” test for causation.
This new “mosaic” standard seems likely to encourage employees to forage through fragments of supervisory comments and behavior to concoct artful retaliation claims where no real evidence of illegal motive actually exists.
EEOC Suggests Best Practices
The EEOC did offer up a list of “best practices” for employers to follow if they wish to prevent retaliation cases from cropping up. They include:
- Establishing and maintaining a “written, plain-language anti-retaliation policy” examples of retaliatory behavior, proactive steps to avoid illegal behavior and a reporting mechanism for complaints;
- Training for the entire workforce on the anti-retaliation policies with emphasis on issues specific to that particular workplace;
- Providing anti-retaliation advice and individualized support for managers and employees alike;
- Proactive follow-up; and
- Review of all consequential employment actions to insure EEO compliance.
The period for public comment ends on February 24, 2016, and a final version of the Guidance can be expected later this year.
This new Guidance is still just a proposal, and even if adopted it represents merely EEOC’s view of what it takes to prove illegal retaliation. However, since EEOC will be the agency investigating and enforcing these claims, employers are faced with the prospect of more claims and more unfavorable EEOC determinations.
The EEOC’s suggestions of best practices may be a good resource for employers to begin shoring up a proactive approach to heading off retaliation claims. Start with a good policy, frequent reminders to supervisors to avoid comments and actions that might appear to be threatening, and consistent review of personnel moves to insure that retaliatory motives have not crept into the decision-making process.