The best employer practices involve maintaining a written anti-retaliation policy, sending a clear message to employees and managers that retaliation will not be tolerated, and training supervisors to understand and respond to claims of unfair treatment in ways that will minimize claims of retaliation.
A version of this article was originally published in the May 2016 issue of The HR Specialist. It is reprinted here with permission.
Employee retaliation claims have risen dramatically in recent years, becoming the most frequently reported basis for discrimination claims. This increase is due, in part, to expanding definitions of what constitutes retaliation. The Equal Employment Opportunity Commission (EEOC) submitted for public comment its Proposed Enforcement Guidance on Retaliation and Other Issues, which details the EEOC’s interpretation of the recent trends and its analysis of retaliation claims, as well as the best practices for preventing retaliation in the workplace.1
Employees’ Protected Activities
The retaliation provisions of Title VII make it unlawful to take adverse action against an employee who has engaged in a protected activity. A retaliation claim has three key elements:
the individual must have engaged in some form of protected activity either through “participation” in an activity related to a charge of discrimination or otherwise taking action in “opposition” to discrimination
in response to that protected activity, the employer must have taken adverse action
the individual established a causal connection between the protected activity and the adverse action.
A retaliation claim will not necessarily be dismissed if the underlying challenged practice is found to be lawful. An individual only has to have a reasonable belief that the matter about which he or she complained violates the civil rights laws in order for the individual’s statements or actions to constitute protected opposition. The EEOC, however, considers that the participation clause of Title VII applies without regard to the reasonableness of the underlying allegations of discrimination.
The EEOC takes an expansive view of the definition of “participation” to encompass internal complaints made to company management within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state civil rights agency. Under this definition, an employee may be deemed to have informed the employer about alleged or potential harassment, even if the alleged harassment has not yet risen to the level of a “severe or pervasive” hostile work environment.
Employees, however, cannot immunize themselves from discipline by raising internal allegations of discrimination or harassment or simply by filing complaints. Employers can discipline or terminate employees for a legitimate, nondiscriminatory, and nonretaliatory reason, notwithstanding any prior protected activity.
Employers’ Adverse Actions
The definition of “adverse action” in the retaliation provisions is broader than the materially adverse action required under the nondiscrimination provisions. The most obvious types of adverse actions are refusal to hire, denial of job benefits, demotion and discharge. Other types of adverse actions include work-related threats, warnings, reprimands, transfers, negative evaluations, verbal or physical abuse, transfers to less prestigious or desirable work or work locations even with no loss in pay, or any other types of adverse treatment that would discourage a reasonable person from engaging in protected activity.
A specific action need not be materially adverse so long as the employer’s conduct, considered as a whole, would deter an individual from undertaking a protected activity. Indeed, the broad retaliation standards can be satisfied even if the individual was not deterred from taking the protected actions.
If an employer’s action would be seen as reasonably discouraging protected activity, it can be deemed retaliation without regard to the level of harm actually inflicted. Moreover, employers have been found to have taken adverse action against an employee who engaged in protected activity by harming or threatening to harm someone related to the employee.
Mosaic of Circumstantial Evidence
The courts and the EEOC have concluded that retaliation can be proven when the employer takes adverse action because the charging party engaged in protected activity. An individual must show that, “but for” the employer’s retaliatory motive, the employer would not have taken the action. This standard does not require that retaliation be the “sole cause” of the action.
The employer will prevail by producing credible, unrebutted evidence that the adverse action was based on a legitimate reason. In turn, employees may discredit the employer’s explanation and demonstrate a causal connection between the protected activity and the adverse action.
Following several appellate courts, the EEOC will apply the concept of a “convincing mosaic” of circumstantial evidence. “The pieces of that ‘mosaic’ may include, for example, suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer’s proffered reason for the adverse action, or any other ‘bits and pieces’ from which an inference of retaliatory intent might be drawn.” Cloe v. City of Indianapolis, 712 F.3d 1171, 1181 (7th Cir. 2013).
Best Practices to Minimize Retaliation Claims
The best employer practices involve maintaining a written anti-retaliation policy, sending a clear message to employees and managers that retaliation will not be tolerated, and training supervisors to understand and respond to claims of unfair treatment in ways that will minimize claims of retaliation. Management should exercise increased vigilance in monitoring supervisory relationships to prevent supervisors and others from taking actions that could be deemed retaliation and that could lead to costly litigation and administrative procedures.
1 After reviewing the public comments, the EEOC will issue the revised guidance to replace the current Compliance Manual on Retaliation issued in 1998.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.