Retaliation against employees for reporting harassment in the workplace continues to be a persistent and widespread problem in American workplaces that the EEOC combats. An employer must make certain its employees feel free to report violations of workplace discrimination laws without fear of retaliation from the employer for making the report. The EEOC offers guidance on its policies and rules; however, courts issue rulings over the course of the years when cases are brought before them. Because the EEOC last issued this guidance in 1998, it sought public input on new guidance regarding retaliation earlier this year.
Retaliation in the Work Place Continues to be a Problem
A retaliation claim must have three elements:
- An employee participated in a protected activity (like a complaint of discrimination or harassment or threatening to file a charge of discrimination);
- An adverse action by the employer/manager that might keep a reasonable employee from making a complaint or supporting one (for example, firing, demotion, negative references, reassignment, and non-employment related actions, like threats of harm); and
- A causal connection must relate the protected activity and the adverse action.
In short, a manager cannot fire or otherwise retaliate against an employee for filing a charge of or opposing discrimination. Since 1998, the number of retaliation charges has roughly doubled, making it the most frequently alleged by of workplace discrimination violation raised with the EEOC. The proposed guidance, while still just proposed, does give employers and employees a pretty clear indication of how the agency will handle such claims in the coming years.
What’s in the New Guidance?
The guidance, found here, offers additional information on the three elements of a retaliation claim and also provides suggested best practices for employers to adopt.
Regarding the protected activity element, the EEOC suggests the underlying protected activity does not have to be proven accurate. In other words, employee complaints of discrimination will be protected provided the complaint was based on a reasonable, good faith belief that their report is accurate.
Regarding the adverse action element, the EEOC seeks to expand the definition of an adverse action to include anything that could be reasonably likely to deter protected activity, regardless of the actual effect it has on an employee’s job. The adverse action has also been expanded to third parties (like spouses or spouse-owned companies) and activities outside the workplace.
Regarding the causal connection element, the EEOC has indicated a “convincing mosaic” of circumstantial evidence can substantiate causation. The EEOC appears open to many types of evidence to establish a causal connection, including timing of the adverse action in relation to the protected activity (when did the employee make the claim and when was he fired?), inconsistent explanations (changing explanations as to why the employee was fired), or evidence the explanation was pretextual (anything that undermines the believability of the employer’s justification).
How Does this Affect Your Workplace?
As a reminder, this updated guidance is merely in draft form; changes may come down the line before it’s finalized. However, your workplace policies or training may need to be updated to reflect the new guidance. Call our firm today to speak with an attorney experienced in EEOC matters who can assist you in preparing for updated federal guidance.