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New EEOC Guidelines for Investigating Retaliation Claims


We have been telling our clients for years, – retaliation claims are on the rise.  With the number of these claims climbing, on August 29th, 2016 the Equal Employment Opportunity Commission issued its Final Enforcement Guidance on Retaliation and Related Issues.  This “Final Enforcement Guidance” is for EEOC investigators to use in investigating retaliation claims.  This is the first time in nearly twenty years that the EEOC has updated these guidelines.


In early 2016, the EEOC published “proposed guidelines” for public input.  The proposed guidelines show a presumption of retaliation (i.e., a presumption of guilt), shifting away from a claimant’s burden to prove his retaliation claim, to the employer to disprove the claim. 


The final guidelines deal predominantly with the anti-retaliation laws for which the EEOC is charged with enforcing – including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act – the revised final guidelines show some significant revisions and are more objective than what was written in the original “proposed guidelines”.


EEO laws prohibit employers from taking an harmful action – changing of employees duties, the employees work environment, the employees shifts, termination or demotion, etc. – because the employee engaged in protected activity.  There are three primary issues in every retaliation case: protected activity, adverse action, and causation.  Complainants must also show that the employer’s stated reason for the adverse employment action was a pretext for an unlawful retaliatory motive.


EEO laws break protected activity into two categories:


(1) participation in proceedings and investigations occurring under the EEO laws,  and

(2) opposition to conduct made unlawful by the EEO laws.  The proposed guidelines, however, take on a much broader view of these two clauses than what is found in the language of the statutes.  


  • The guidelines state that protected activity includes an employee’s participation in internal discrimination complaints to company management, human resources, or other internal complaint processes, even though the federal EEO laws limits the participation clause to investigations, proceedings, or hearings occurring under the law, such as EEOC investigations or proceedings. 


  • Although EEO laws, as interpreted by the federal courts, limit protected opposition conduct to circumstances in which the employee opposes unlawful discrimination specifically based on a protected class, the new guidelines’ interpretation broadens the opposition clause to include employee complaints that “explicitly or implicitly” communicate an employee’s belief that the employer may be engaging in employment discrimination.  


  • The new guidelines further expand the opposition clause to include an employee’s opposition to conduct that the employee reasonably believes is unlawful under EEO laws, but which may not actually be prohibited by these laws. 


These are narrow distinctions to draw, but these overreaching views reflect the EEOC’s recommendation to its investigators to take a more lenient stance on what is and is not protected activity, and focus more on the causation piece of their investigations. 


EEO laws have all adopted a “but-for” causation standard for retaliation claims.  This simply means that but for an employee’s protected activity (their complaint), the adverse action would not have occurred. 


In employment law, the competing causation standard is the “motivating factor” standard, meaning that a claimant need show only that a prohibited factor (e.g., race, sex, disability, etc.) contributed to the employment decision—not that it was the but-for or sole cause. 


In the usual course of events, this standard requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.    “But for” means “the real reason,” as in the employee’s alleged misconduct was the real reason for the termination. 


Rather than relying on this explanation, the new guidelines advise that “there can be multiple ‘but-for’ causes, and retaliation need only be ‘a but-for’ cause of the materially adverse action in order for the employee to prevail.” 

The EEOC’s final guidelines offer these recommendations to employers:


  • Maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;


  • Train managers, supervisors, and employees on the employer’s written anti-retaliation policy, and send a message from the company’s leadership that retaliation will not be tolerated.


  • When an employee makes a complaint of discrimination – internal or external – remind all parties involved, especially the subject of the complaint and the managers and supervisors, that the company has a zero-tolerance policy for retaliation, and any retaliatory acts will be met with severe consequences;


  • Check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance; and to


  • Designate a human resources manager, in-house counsel, or other member of management to review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.


Employers should consider implementing all of these recommendations, Not only will these practices help reduce the number of actual or perceived retaliatory acts, but will help support a company’s defense to retaliation claims filed with the EEOC or in court.