By Michael J. Roper, Esquire - Bell & Roper, P.A.
Employers should be aware of the need to review their existing personnel policies concerning employment retaliation and Americans with Disability Act (ADA) interference in light of the new “Enforcement Guidance on Retaliation Issues,” released by the Equal Employment Opportunity Commission (EEOC) on August 29, 2016.1 Such review is particularly important in light of the fact that retaliation charges have been increasing annually and accounted for almost 45% of all charges filed with the EEOC last year.
The Guidance does not constitute controlling law, but does inform employers as to how the agency will likely evaluate charges during the administrative phase.
Furthermore, courts will often look to agency guidance in order to resolve unsettled issues of law. The Guidance applies to all retaliation claims governed by the EEOC, including Title VII, the ADA, the Age Discrimination and Employment Act (ADEA), the Equal Protection Act (EPA), and Section 501 of the Rehabilitation Act.
The well-established elements of an employment retaliation claim remain intact, namely:
1. An employee participated in an EEO process or opposed discrimination.
2. A materially adverse action was taken by the employer against the employee.
3. A casual connection between the protected activity and the adverse action.
However, the EEOC’s new Guidance provides a more expansive definition of that conduct which would qualify as “protected activity.” The new Guidance protects complaints which are internal, oral, informal, ambiguous, and those concerning actions which are ultimately deemed to be lawful. Protected activity now also includes complaints regarding harassment based upon classes currently deemed “protected” by the EEOC, but not necessarily by the courts (i.e., sexual orientation). It also includes such activity as an employee’s request for an exception to a uniform policy, as a religious accommodation, and an employee’s refusal to obey an order which he/she “reasonably” believes to be discriminatory.
The Guidance also substantially expands the scope of those employment actions which will be considered to be “materially adverse.”
Traditionally, adverse actions have been work-related and include such tangible employment actions as demotion, suspension, refusal to hire, discharge, denial of promotion, etc. However, according to the EEOC, such “materially adverse actions” now include an action that has “… no tangible effect on employment or even an action that takes place exclusively outside of work as long as it might well dissuade a reasonable person from engaging in protected activities.” Examples provided include exclusion from team lunches; disparaging a person to others or to the media; threatening re-assignment; and abusive verbal or physical behavior even if not sufficient to constitute an actionable hostile work environment.
The Guidance does acknowledge the “but-for” causation standard for private sector and state and local government retaliation cases under the statutes enforced by the EEOC. That standard requires that the evidence show that “butfor” a retaliatory motive, the employer would not have taken the adverse action. Citing University of Texas Southwest Medical Center v. Nassar, 133 S.Ct. 2517, 2534 (2013). The “but-for” causation standard does not require that retaliation be the sole cause of the adverse action. There can be multiple “but-for” causes and retaliation need only be one of the “but-for” causes of the materially adverse action in order for the employee to prevail.
The Guidance provides examples of legitimate, non-retaliatory reasons for a challenged action that an employer may utilize in order to defeat a claim of retaliation. Those examples include: (1) poor performance; (2) negative job references; (3) inadequate qualifications for the position sought; (4) qualifications/application or interview performance inferior to the person selected; (5) misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct or theft); and (6) reduction in force or other downsizing.
In addition to discussing traditional claims of retaliation, the Guidance also separately addresses the ADA’s prohibition of “interference” with the exercise of rights under the ADA. The ADA interference provision is broader than the antiretaliation provision, protecting any individual who is subject to coercion, threats, intimidation, or interference with respect to ADA rights. The Guidance suggests that the EEOC will aggressively challenge conduct allegedly interfering with requests for accommodation under the ADA.
Finally, the Guidance suggests different types of policy, training, and organizational changes (which the EEOC refers to as “promising practices”), which employers may wish to consider implementing, in order to minimize the likelihood of claims for retaliation. These promising practices include:
• Implementing a written, plain language anti-retaliation policy;
• training all managers, supervisors, and employees on the employer’s written anti-retaliation policy;
• providing practical guidance to managers and supervisors on interactions with employees who have lodged discrimination complaints against them;
• establishing a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution;
• proactive follow-up with employees, managers, and witnesses during the pendency of an EEO matter; and review of employment actions for EEO compliance regarding retaliation.
Along with the Guidance, the EEOC has issued two accompanying documents, namely, a question and answer publication 2 which provides a summary of the Guidance, and a Small Business Fact Sheet 3 which encapsulates the major points of the Guidance. Both of these are helpful resources for employers, HR professionals, managers, and employees.
Ultimately, the EEOC’s new enforcement Guidance certainly presents new challenges for employers and continues the agency’s history of advocating for increasingly expansive interpretations of law, which extend greater protections to job applicants and employees, while creating new burdens and liability for employers. It remains to be seen whether the courts will ultimately adopt any of the EEOC’s positions on these issues, but obviously, the need to train HR professionals, management, and other key personnel on this new Guidance is paramount.
In order to prevent retaliation from occurring and protect the employer from these claims, HR professionals and managers should consider implementing the following procedures 4:
• Avoid publicly discussing the allegation.
• Do not share information about the EEO activity with other managers or subordinates.
• Be mindful not to isolate the employee.
• Avoid reactive behavior, such as denying the protected employee information/equipment/benefits provided to others performing similar duties.
• Do not interfere with the EEO process.
• Provide clear and accurate information to EEO staff, investigator or judge.
Mr. Roper was admitted to the Florida Bar in 1985 and is admitted before the United States District Court, Middle, Northern and Southern Districts of Florida; the United States Court of Appeals, Eleventh Circuit; and the United States Supreme Court. Mr. Roper received his B.A. in 1981 from Florida State University and his J.D. in 1984 from University of Florida. While attending the University of Florida, he served as the Editor in Chief of the International Law Journal. He is a member of the Orange County Bar Association, The Florida Bar, Defense Research Institute, and Florida Defense Lawyers Association. Mr. Roper’s civil litigation practice includes civil rights and public entity law, products liability, construction litigation, employment law and insurance coverage, in both federal and state courts. He is also a frequent speaker at insurance, risk management, and other professional conferences.