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Retaliation Guidance from the EEOC

As a C-Suite executive, you understand how Equal Employment Opportunity laws apply to your company and your corporate policies likely confirm that job applicants and employees cannot be fired, demoted, harassed or retaliated against for filing a discrimination claim. But what many C-Suite executives may not realize is that a large number of discrimination claims made to the Equal Employment Opportunity Commission (EEOC) based on race, color, sex, religion, national origin, age, disability and genetic information, do not establish a violation of the law while a subsequent retaliation allegation results in a discrimination finding.  In fact, in 2015, the EEOC received 39,757 charges of discrimination based on retaliation claims, representing nearly forty-five percent of all filed claims.

It is no surprise, therefore, that on August 29, 2016, the EEOC released a seventy-six page Enforcement Guidance on Retaliation and Related Issues (Guide), their first compliance guide since 1998, after reviewing courts’ interpretation and application of the law relative to various retaliation issues.  The Guide addresses retaliation issues under each of the statutes enforced by the EEOC including:

  • Title VII of the Civil Rights Act of 1964
  • Age Discrimination in Employment Act
  • Title V of the American with Disabilities Act
  • Section 501 of the Rehabilitation Act
  • Equal Pay Act
  • Title II of the Genetic Information Nondiscrimination Act.
Broader Terms

In order for a retaliation claim to be successful, it must contain three elements:

  1. Protected Act:  An employee must engage in a protected activity such as a discrimination or harassment complaint.
  2. Employer Action:  The employer must take an adverse action against the employee who engaged in the protected activity.
  3. Causal Connection:  There must be a causal relationship between the protected act and the employer action.

While these elements are not new, all C-Suite executives should be aware that the Guide sets forth a broad interpretation of each element which may ultimately make it easier for an employee to be successful on a retaliation claim.

Protected Act:  An activity can be deemed protected regardless of the reasonableness or unreasonableness of the allegations of discrimination.  Further, the underlying claims of wrongdoing do not have to be proven accurate.

Employer Action:  The definition of adverse action is expanded in the Guide to include:

  • Anything that likely deters a protected activity;
  • Acts that are work related as well as acts that occur outside of work;
  • Acts against a third party who is connected to the complaining employee such as a spouse.

Causal Connection: Historically the causation element was oftentimes the most difficult for an employee to prove.  An employee needed to demonstrate that their protected activity caused an employer action by showing that the employer was aware of the protected activity and that the employer’s action occurred shortly thereafter.  The Guide all but eliminates this element by allowing the employee to show a “convincing mosaic” that a causal connection exists.

Although the Guide is not a rule or administrative decision, it will be used as a reference for EEOC investigators who are reviewing employee claims of retaliation.  For that reason, it is imperative for all C-Suite executives to review the Guide and to make all necessary adjustments to their company’s anti-retaliation policy.

Adjusting Company Anti-Retaliation Policies

The terms of the Guide suggest that some amendments should be made to nearly every company’s anti-retaliation policy including:

  • Employee Procedure:  Establish or expand procedures for employees who are concerned about retaliation.
  • Retaliation:  Make certain that your policy explicitly sets forth that retaliation may be subject to discipline.
  • False Reports:  It is also important that your policies confirm that no disciplinary action will be taken where discrimination reports are ultimately found to be false.  Many companies provide that filing a false claim of discrimination is a terminable offense.  All such provisions should be immediately amended.
  • Training:  All managers and supervisors should receive periodic training on your company’s anti-retaliation policy.  In light of the new EEOC Guide, it is likely best to provide all company employees with such training.

In some instances, the EEOC has authority to sue your company as the employer for temporary relief before they complete their review of retaliation charges.  With a successful retaliation claim, a plaintiff is entitled to:

  • Back pay
  • Future lost wages
  • Punitive and compensatory damages.

C-Suite executives may wish to consider meeting with an experienced executive employment attorney to obtain a second opinion regarding business’ anti-retaliation policies and to amend those policies as soon as possible in order to avoid costly retaliation claims.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.