By Deryn Sumner
A few weeks ago, the EEOC announced that it is seeking public comment on a draft of proposed Enforcement Guidance concerning retaliation: http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm. The press release noted that the EEOC had last issued guidance about retaliation in 1998. Since then, there have been some substantive developments in the case law. Notably, in 2006, the Supreme Court issued its decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which addressed what constitutes an adverse action for purposes of a claim of retaliation. The decision held that for purposes of retaliation claims, adverse actions do not need to be “ultimate employment decisions.” It also contains one of my favorite sentences from a Supreme Court decision for its sheer simplicity, “Context matters.” As the decision goes on to explain, a schedule change taken in retaliation may not be a big deal to every employee, but it can be a big deal to someone with school-age children. Therefore, the context of each action alleged to be retaliatory matters.
Now, ten years after this Supreme Court decision, the EEOC is looking to update its Enforcement Guidance. Another interesting note from the press release is the massive increase in retaliation claims:
The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.
The 1998 guidance about retaliation claims was part of the EEOC Compliance Manual and was primarily geared towards investigators reviewing claims of private sector retaliation, though the same legal elements apply to both private sector and federal claims. The proposed Enforcement Guidance, for which the EEOC now seeks comment, takes the format of other EEOC publications, including the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (available at http://www.eeoc.gov/policy/docs/accommodation.html), a document I refer clients and others to almost weekly.
This proposed Enforcement Guidance on retaliation is thorough, coming in at 76 pages with 222 footnotes, and is well-organized. Just as in the 1998 release, it starts out by laying out the elements of a retaliation claim, focusing on all the forms protected activity can take, and the broad view of coverage of adverse actions (as we discussed in last month’s newsletter article, https://feltg.com/claims-of-retaliation-have-a-broader-view-of-coverage-than-discrimination-claims/). It’s important to remember that employees are protected from retaliation for initiating an EEO complaint even if the claims being raised in the underlying claims do not have any merit. The Proposed Guidance also details some of the other forms of protected activity beyond just participating in and opposing protected activity, including “complaining about alleged discrimination against oneself or others, or threatening to complain; providing information in an employer’s internal investigation of an EEO matter; refusing to obey an order reasonably believed to be discriminatory; advising an employer on EEO compliance; resisting sexual advances or intervening to protect others; passive resistance (allowing others to express opposition); and requesting reasonable accommodation for disability or religion.” Something I also find very useful in the proposed Enforcement Guidance is the inclusion of specific examples, which are sprinkled throughout the document.
The proposed Enforcement Guidance also dedicates a section to the prohibition of employer interference with an employee’s exercise of ADA rights, includes a section on remedies available when an employee prevails on retaliation claims, as well as a section on best practices employers can adopt to reduce incidents of workplace retaliation.