Background
Under a retaliation theory, individuals have legal redress if an employer takes a material adverse action against an individual for opposing discrimination or for filing a charge of discrimination with the EEOC, or helping others with such efforts. The guidance, EEOC Enforcement Guidance on Retaliation and Related Issues, updates the EEOC’s 1998 guidance. The updated guidance states that much of retaliation law is straightforward and the guidance often follows legal precedent (e.g., it does not reject U.S. Supreme Court rulings). However, in some instances, the EEOC’s interpretations differ from general trends in retaliation law developed in the appellate courts. The Commission notes the updated guidance does not address issues relating to waivers and releases.
Many of the points made by the EEOC in its updated guidance are accepted widely by the courts. To the extent employers are concerned with complying with the EEOC’s guidance, they should reexamine their handbooks and keep the EEOC’s guidance in mind when presented with bad faith or untruthful internal allegations of discrimination. Our model Equal Employment Opportunity, Harassment and Non-Harassment handbook policies have been updated as result of the EEOC guidance. A copy of the updated policies is available in FormSource in the Handbook Updates section and titled EEO, Harassment and Non-Harassment Policies February 2017. Our Basic Employment Policies are also being updated and we will communicate these updates in the very near future.
Protected Activity: Type is Important
The EEOC’s updated guidance reiterates that an employee must engage in protected activity to establish a retaliation claim. Historically, protected activity has been divided into two categories: “opposition” and “participation.” The EEOC views “opposition” as an explicit or implicit communication that a matter complained of is or could become discrimination. The EEOC’s prior guidance limited “participation” to: (1) individuals challenging alleged discrimination in EEOC proceedings, state administrative proceedings, and state and federal court proceedings (e.g., a charging party/plaintiff); and (2) individuals who testify or otherwise participate in such proceedings (e.g., individuals who assist the charging party/plaintiff in an investigation or lawsuit).
The opposition/participation distinction matters to the EEOC because the Commission and some courts have seen a need to give greater protection to employees who engage in participation. For the EEOC, allegations made in the form of “participation” are protected absolutely, while allegations made in the form of opposition are subject to a “reasonable belief” standard. Even if an employee files a charge and shortly thereafter admits the charge is false, the EEOC’s long-standing position, although not accepted by some courts of appeal, is that the employer may not take adverse employment action based on the false charge. On the other hand, an employee may succeed on an “opposition” retaliation claim by showing that he or she had a reasonable belief that what he or she complained of was a violation of federal anti-discrimination law.
Guidance Expands the Definition of “Participation”
According to the EEOC’s updated guidance, a company’s own equal employment opportunity complaint process constitutes “participation” protected activity. Thus, employers who wish to avoid EEOC scrutiny will not take any action against an employee who provides demonstrably false or maliciously defamatory information in an internal investigation. The EEOC’s position also raises the possibility the Commission will find defective any anti-harassment policy that requires complaints to be made in “good faith.” As such, our model policies have been updated to remove any “good faith” requirement.
As a practical matter, the EEOC’s new position may have limited impact. Many employers, when faced with dubious reports of discrimination, simply evaluate the claim as lacking merit but take no employment action against the employee making the meritless report. The EEOC’s updated guidance permits an employer to evaluate truthfulness as part of its determination of the merits of the underlying complaint, so long as the employer takes no material adverse action as the result of concluding the employee’s story is maliciously false.
A final word of caution on the participation clause: The EEOC does not view participation protection limited to employees who make bad faith statements alleging discrimination. The EEOC also will find unlawful retaliation when an employer takes materially adverse action against employees who in bad faith cover up discrimination. The guidance states, “In the Commission’s view, playing any role in an internal investigation should be deemed to constitute protected participation. Otherwise those providing information that supports the employer rather than the complainant could be left unprotected from retaliation.”
“Opposition” Viewed Broadly
As mentioned, the EEOC defines “opposition” as a communication that a matter is discriminatory. An example would be an employee stating at a team meeting that women do all the difficult work. Perhaps concerned that courts will not agree with the EEOC’s position that a complaint made pursuant to a company’s internal complaint process is “participation,” the EEOC considers those complaints to be both “participation” and “opposition” protected activity.
The EEOC stresses that “opposition” activity is not limited to employees who use the terms “discrimination” or “harassment.” For the EEOC, the employee’s complaint about discrimination may be implicit and the Commission’s focus will be on whether the complaint would reasonably have been interpreted as opposition to employment discrimination. The EEOC’s updated guidance makes numerous points about opposition activity, including the following:
- Opposition is not limited to complaints to managers, but also may include statements to coworkers, an attorney, the police or customers (provided complaints to customers are not so disruptive or excessive to be unreasonable).
- Opposition includes refusing to obey a command reasonably believed to be discriminatory, resisting sexual advances, and requesting an ADA or religious accommodation.
- The employee’s opposition must be based on a reasonable good faith belief that there has been discrimination under federal law, but there is no requirement that a matter complained of actually violates the law. The EEOC considers its own positions, even if not adopted by courts, to be a safe harbor for demonstrating reasonable good faith belief, e.g., the EEOC’s position that discrimination on the basis of sexual orientation violates Title VII.
- The form of the employee’s opposition also must be reasonable. Unlawful acts and threatening violence, badgering subordinates to provide witness statements in support of an EEOC charge, or an overwhelming number of patently specious complaints are not reasonable. In addition, opposition to alleged discrimination does not excuse an employee from performing job duties.
- All employees who engage in opposition are protected from retaliation. The EEOC rejects the “manager rule” adopted by some courts that requires managers “step outside” a management role and assume a position adverse to the employer to engage in protected activity.
Materially Adverse Action
The updated EEOC guidance emphasizes that under a 10-year-old Supreme Court law, an employer’s retaliatory acts encompass a wider range of actions than “adverse actions” required to establish a viable claim under non-discrimination provisions of federal law. Thus, the EEOC considers work-related ultimatums, reprimands, warnings, transfers, and lowered performance evaluations sufficient to meet the standard of a materially adverse action. The EEOC sees the following acts — some of them not work-related — as potential materially adverse actions:
- Disparaging the person in the media;
- Making false reports to government authorities;
- Filing a civil action;
- Threatening reassignment;
- Workplace surveillance;
- Requiring re-verification of work status, initiating action with immigration authorities; and
- Taking a materially adverse action against a close family member.
The updated guidance states that “petty slights,” “minor annoyances,” or “trivial punishments” do not rise to the level of materially adverse actions. However, the EEOC’s view is that context is very important and the key is whether an action is reasonably likely to deter protected activity.
ADA Interference
Under Section 503(b) of the ADA, it is unlawful to “coerce, intimidate, threaten, or interfere” with any individual in the exercise or enjoyment of his or her ADA rights or for having assisted or encouraging others in exercising ADA rights.
The EEOC notes that in many cases, actions that would constitute interference would be separately actionable as a denial of accommodation, discrimination or retaliation. However, taking an approach similar to that under the Family and Medical Leave Act, the EEOC says the interference provision protects individuals from many acts that do not rise to the level of materially adverse employment actions, and that the interference protections of the law therefore are much broader than the anti-retaliation provisions. Additionally, the interference and anti-retaliation provisions are not limited to qualified individuals with a disability. Following are some examples of potential ADA interference claims provided by the EEOC:
- Manager pressuring a non-disabled employee not to advise a disabled coworker of rights to reasonable accommodation;
- Manager refusing to consider accommodation unless employee takes medication prescribed by doctor that might eliminate the need for accommodation;
- Issuing a policy that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason.”);
- Requiring an applicant to submit to an unlawful pre-employment medical examination, regardless of whether the applicant is disabled and is ultimately offered the job;
- Employee requests telecommuting from human resources, manager agrees to informally allow employee to work from home one day a week, but tells employee if she does not withdraw her formal request for accommodation, manager will tell human resources job cannot be performed at home;
- Discouraging an applicant who needs an accommodation from pursuing the position or requesting the accommodation; and
- Disabled employee is granted a modified work schedule by her prior manager as a reasonable accommodation, but new manager threatens employee with an adverse action if employee does not forgo the modified schedule and begin working a normal schedule.
Based on the examples provided in the guidance, it appears the EEOC intends to find interference violations when it determines employers have communicated an intent to enforce policies inflexibly or in a manner that might undermine or discourage the interactive process.
The foregoing information highlights key portions of the EEOC guidance. A complete copy of the guidance is available here.
As always, please contact your Human Resources Business Partner if you have any questions.