Carla BrownEmployment LawNew EEOC Retaliation Stance Has Employers Seeing Red

February 15, 2016

Law360, New York (January 27, 2016, 5:56 PM ET) — For the first time in nearly 20 years, the U.S. Equal Employment Opportunity Commission has proposed changes to its guidance on workplace retaliation issues, setting a standard that management attorneys say is overly broad and will make it hard to defend against retaliation lawsuits.

On Thursday, the workplace discrimination watchdog released a 76-page proposed update to its retaliation enforcement guidance, asking for public input on a document that hasn’t been updated since 1998. The guidance, showcasing the agency’s reading of federal laws based on court precedent, incorporates changes including an expansion in the scope of what is considered activity protected from retaliation.

Bernard Tisdale, a management attorney at Ogletree Deakins Nash Smoak & Stewart PC, says the guidance bolsters the enforcement efforts of the agency, which already scrutinizes employers’ hiring practices and other aspects of how businesses deal with their employees.

“This is typical of what we’re seeing out of the EEOC,” Tisdale said.

“They’re giving a pretty strong suit of armor to employees,” he said. “They’re moving more toward the employee you can’t terminate.”

Broad Definition of Retaliation

Tisdale highlighted one section of the proposed guidance that he says expands the concept of causation — the connection between a protected activity, such as reporting discrimination or sexual harassment, and an adverse employment action, such as termination.

“The charging party may discredit the defendant’s explanation and demonstrate a causal connection between the prior protected activity and the challenged adverse action by what one appellate court has described as a ‘convincing mosaic’ of circumstantial evidence that would support the inference of retaliatory animus,” the proposed guidance says.

Tisdale says that creates a problem for employers because it’s too broad.

“The EEOC is greatly trying to expand what might be enough evidence to … convince a judge or jury that termination would not have occurred but for discriminatory animus,” he said.

Although it doesn’t carry the weight of a rule or administrative decision, the EEOC’s enforcement guidance is a powerful tool. It is a reference for EEOC investigators looking into charging parties’ retaliation and other claims, and employers, employees and either parties’ attorneys might also rely on its 76 pages and 30 hypothetical retaliation scenarios.

“Employers could look at it and take it as gospel,” Tisdale said.

EEOC employees investigating claims could use the guidance to connects the dots in ways unsupported by a specific case’s facts, according to David Garland, a management-side attorney at Epstein Becker Green PC.

“It is important that investigators understand what is retaliation and what isn’t, [but] what I’m concerned about is we don’t want an investigator to … jump to conclusions,” he said.

Tisdale would like to see attorneys chime in about what he says are overly expansive interpretations of the law during the monthlong comments period that ends on Feb. 24.

For one thing, he said, when it comes to retaliation allegations with respect to hostile work environment claims, the EEOC seems to say a complaint is a protected activity even if there isn’t an allegation of a pervasive or severe hostile-work environment.

“They seem to be greatly expanding what activities could constitute necessary protected activity,” he said.

A ‘Widespread Problem’

The EEOC’s proposed guidance says the agency is adapting its interpretation not to overhaul how it tackles retaliation but merely to address the reality that the percentage of retaliation charges has roughly doubled since 1998, making that claim the most frequent allegation people bring to the agency. For example, by the end of fiscal 2014, about 43 percent of all private sector charges filed with the EEOC included retaliation claims, according to the agency.

“Retaliation is a persistent and widespread problem in the nation’s workplaces,” EEOC Chair Jenny R. Yang said in a statement, discussing why the EEOC is updating its guidance. “If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws.”

“Retaliation claims are such a significant portion of the body of claims that are made these days,” Garland said. “It’s rare that a discrimination claim doesn’t include a retaliation component.”

According to plaintiffs attorney Carla Brown, a partner at Charlson Bredehoft Cohen & Brown PC, the EEOC has been correctly addressing retaliation all along and is simply adding the courts’ support to its enforcement regime.

“I think the EEOC got it from the beginning,” she said, “and this just happens to be further expansion on that.”

The 76-page guidance cites scores of court decisions it says form the basis for the agency’s updated interpretation of what constitutes retaliation under the various laws the EEOC is charged with enforcing, such as Title VII of the Civil Rights Act of 1964 and age discrimination and equal-pay laws.

The EEOC guidance points to many court rulings that broadened retaliation to include third parties and to involve a greater number of scenarios that go beyond basic employment decisions like hiring, firing or some disciplinary action.

For example, in the high court’s Burlington Northern and Santa Fe Railway v. White decision in 2006, the justices ruled that the anti-retaliation provision of Title VII does not confine the actions and harms it forbids to hiring, firing and failing to promote. In that case the court held that a female employee’s suspension without pay — even if back pay was eventually awarded — was an “adverse employment action,” and so was the change of responsibilities in the same job category.

The high court ruled in 2008’s CBOCS West v. Humphries that a claim of retaliation can be premised on reporting an employer’s biased conduct against a third party.

The high court added to Burlington Northern with its 2011 decision in Thompson v. North American Stainless, which said a plaintiff can allege retaliation if a family member also employed could be seen as the object of retaliation for the plaintiff’s own protected activity.

According to Brown, it is no surprise that the EEOC issued the guidance.

“After these enormously powerful U.S. Supreme Court cases, there’s a need for the EEOC to try to address the issue again,” she said.

The filing is a “Proposed guidance on retaliation and related issues for public input,” docket number EEOC-2016-0001.

–Editing by Jeremy Barker and Patricia K. Cole.

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