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EEOC PUBLISHES FOR PUBLIC INPUT DRAFT ENFORCEMENT GUIDANCE ON RETALIATION AND RELATED ISSUES

On January 21, 2016 the EEOC published a 72-page proposed Enforcement Guidance on Retaliation and Related Issues (Proposed Guidance), designed to supersede the corresponding, but far less comprehensive, portion of EEOC’s Compliance Manual issued in 1998.  For the most part, the Proposed Guidance adds much more detailed analysis based upon the substantial jurisprudence ensuing between 1998 and the present time.  

Management advocates reportedly “see red” in the  Proposed Guidance, in part, due to its rejection of the so-called judicially-constructed “manager rule” pursuant to which some courts have required that “managers must ‘step outside’ their management role and assume a position adverse to the employer in order to engage in protected activity.”  The Proposed Guidance notes that Title VII’s “opposition” clause does not distinguish among types of employees and, further, that

“Section 704(a) cannot function, as intended, to protect efforts to end Title VII violations, if those employees best situated to call attention to and oppose an employer’s discriminatory practices are outside its protective ambit.”

Additionally, whereas the Supreme Court Ellerth/Faragher  precedent which establishes an affirmative defense to supervisor harassment where the employer shows it acted promptly to prevent and remedy harassment and the plaintiff unreasonably failed to prevent or mitigate harm

“creates incentives for employers to adopt policies and procedures that encourage the prompt reporting, investigation and remedying of workplace harassment, the [so-called] ‘manager rule’ discourages supervisory employees from fulfilling their duty to report harassment and participate in internal investigations because it leaves them unprotected from retaliation.”

The Proposed Guidance emphasizes that “opposition” is protected activity even if the alleged harassment has not yet risen to the level of a “severe or pervasive” hostile work environment[1] and that opposition activity is protected unless it “significantly disrupts” the workplace or “directly hinders” the plaintiff’s ability to perform his or her job.

The Proposed Guidance devotes considerable attention, with multiple new examples, to “inquiries and other discussions related to compensation,” noting that “materially adverse actions against employees for protected opposition activity relating to discussion of their pay may constitute retaliation in violation of the EEO laws.” Again with multiple examples, the Proposed Guidance extensively discusses the greater breadth of the “materially adverse” standard in retaliation cases than the “adverse action” standards in discrimination cases, noting that

“retaliation expansively reaches any action that is ‘materially adverse,’ meaning any action that might well deter a reasonable person from engaging in protected activity,”

expressly including such matters as increased scrutiny of work or attendance, “transfers to less prestigious or desirable work or work locations,”  “abusive verbal or physical behavior” (even if not sufficiently severe or pervasive to constitute a hostile work environment),[2] and threats to report immigration status.[3]

The Proposed Guidance updates the “causal connection” section of the previous manual to address interim rulings. Thus, the Proposed Guidance indicates that “but for” causation is required to prove Title VII retaliation claims, even though Title VII claims raised under other statutory provisions only require “motivating factor” causation.  The Proposed Guidance also highlights the “cat’s paw” theory  whereby an employer may be vicariously liable for an adverse action if one of its agents other than the ultimate decisionmaker is motivated by discriminatory or retaliatory animus and intentionally and proximately causes the action.

In addressing circumstantial evidence, the Proposed Guidance discusses what it calls proof via a “convincing mosaic” of circumstantial evidence which may permit a finding of retaliatory termination even five years after the protected activity event.

“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[[4]], or any other ‘bits and pieces’ from which an inference of retaliatory intent might be drawn. [citation omitted].”

 

The Proposed Guidance also has a separate section on ADA interference, which notes that ”the interference provision is broader than the anti-retaliation provision, protecting any individual who is subject to coercion, threats, intimidation or interference with respect to ADA rights;” among cited examples is a policy that purports to limit employee rights to invoke ADA protections as through a fixed leave policy that precludes exceptions for any reason.

Lastly, the Proposed Guidance contains a new section titled “Best Practices” which suggests that the employer’s “written, plain-language anti-retaliation policy” should include, among other things, examples of retaliation “that managers may not otherwise realize are actionable” and “proactive steps” for avoiding actual or perceived retaliation “including interactions by managers and supervisors with employees who have lodged discrimination allegations against them.”  The Proposed Guidance also expressly cautions against the not atypical policy provision  that admonishes employees that “reports of discrimination found to be false will subject the worker to disciplinary action.”

[1] The Proposed Guidance notes that “the entire hostile work environment liability standard is predicated on encouraging employees to report harassment and employers to act on early complaints, before the harassment becomes ‘severe or pervasive.’”  The Proposed Guidance further emphasizes that, inasmuch as individuals may be unaware of specific requirements of anti-discrimination laws, they may make “broad or ambiguous complaints” which will be protected opposition so long as they would “reasonably have been interpreted as opposition to employment discrimination.”

[2] The Proposed Guidance recognizes that some lower courts have found some of the listed actions not significant enough to deter protected activity but avers that “the Commission concludes that those decisions are contrary to the broad reasoning and examples provided by the Supreme Court.”  “Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public interest by deterring others from filing charges,” the Proposed Guidance says, noting precedent to the effect that an illegal act “is a wrong in itself under Title VII, regardless of whether that wrong would warrant an award of [damages].”

[3] “…[R]etaliation and hostile work environment set different thresholds for demonstrating actionable discrimination.”

[4]  The Proposed Guidance notes that falsity of the employer’s proffered explanation may be sufficient to infer that the real reason was retaliation.