Overloaded: EEOC Proposed Guidance on Retaliation

Document intended to help employers navigate claims is overly complicated, many say

By Allen Smith, J.D. Mar 3, 2016
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Responding to workers’ claims of wrongdoing can be a long hike for employers and employees alike, and on long hikes, it’s best to pack light. 

Unfortunately, the Equal Employment Opportunity Commission’s (EEOC’s) proposed guidance for how to trek through the Mount Everest of equal employment opportunity (EEO) claims—retaliation—is “twice the length and complexity of the existing Compliance Manual chapter on retaliation it is intended to replace,” the Equal Employment Advisory Council (EEAC) noted in Feb. 24 comments. “The document as currently drafted is virtually incomprehensible to the many stakeholders that would otherwise benefit from meaningful guidance.”

Small wonder then that business groups including the Society for Human Resource Management (SHRM) expressed concern in their comments that the proposed guidance goes too far.

“The EEOC’s position fails to recognize that not all reprisals rise to the level of actionable retaliation under federal EEO laws,” said Rae Vann, general counsel with the EEAC and the author of its comments, in an interview with SHRM Online. (Based in Washington, D.C., the EEAC is a nonprofit employer association providing guidance on EEO and affirmative action obligations.)

In addition, the Fisher & Phillips law firm noted that the proposed guidance states several times that employees can bring retaliation claims for conduct that has “not yet” reached the harassment stage. “The proposed guidance seems to intimate that an employee who complains about conduct that currently falls short of actionable harassment will engage in protected opposition because the conduct will soon one day rise to that level,” said Richard Meneghello, an attorney with Fisher & Phillips in Portland, Ore., and the co-author of the firm’s comments.

 “[That] would be like saying that any worker who takes a paper clip from the office supplies for personal use would one day certainly embezzle tens of thousands of dollars from the company bank accounts. One doesn’t necessarily lead to the other.”

Expansive ‘Participation Clause’

Littler’s Workplace Policy Institute, the advocacy arm of the employment and labor law firm, noted that EEO laws provide for activity that is protected from retaliation in two categories:

  • Participation in proceedings and investigations occurring under the EEO laws.
  • Opposition to conduct made unlawful by EEO laws.

The EEOC’s proposed anti-retaliation guidelines “contain an expansive definition of protected activity under both the participation and opposition clauses, beyond the plain language of the laws and the interpretation of those laws by federal courts,” Littler said.

The proposed guidance states that the participation clause protects an individual “regardless of the reasonableness of the underlying allegations of discrimination,” SHRM said. “As stated, this position necessarily cloaks all participation activity with an absolute layer of protection, and as such, would protect activity that is unreasonable, including charges that are filed in bad faith and with malicious intent.”

As it is, “since 1997, there has been a 120 percent increase in the number of retaliation charges dismissed for lack of substantial evidence,” Fisher & Phillips said in its comments.

The proposed guidance expands the definition of the participation clause by providing that “participation” encompasses internal EEO complaints. But the participation clause actually does not, according to “substantial judicial authority” holding that it protects only participation in formal agency investigations, SHRM wrote.

This expansion of the participation clause is unwarranted. “Because the filing of an internal complaint almost always will qualify as protected ‘opposition’ conduct, there is no need for the commission to take the position that such activity also always will constitute protected ‘participation,’ ” the EEAC stated in its comments.

Don’t Jettison the ‘Manager Rule’

It’s important not to cast off essentials, and the “manager rule” is one that has been needlessly cast off in the new proposed guidance, the business commenters asserted.

The manager rule, widely adopted by courts, requires managers to step outside their management role and assume a position adverse to the employer to engage in protected activity. That adverse activity might be filing or threatening to file a complaint against the company or assisting other employees in doing so, Vann explained. “That way, the company is placed on notice that the manager is asserting EEO rights on his or her own behalf, rather than simply carrying out regular job responsibilities,” she noted.

The proposed guidance rejects the manager rule, even though, SHRM asserted, numerous courts have disagreed with the assertion that the Supreme Court invalidated the rule.

“SHRM respectfully suggests the enforcement guidance is not only inconsistent with substantial legal authority but also may hurt employees in jurisdictions that have rejected the EEOC’s position.”

For example, a manager may read the enforcement guidance and assume that he or she is protected in a jurisdiction where he or she is not, SHRM explained.

Understated Materiality

The proposed guidance piles on a list of factors that the EEOC considers to be materially adverse, that is, the guidance explains, the type of action that could dissuade a reasonable person from engaging in protected conduct, such as:

  • Scrutinizing the work or attendance of an individual more closely than that of other employees, without justification.
  • Giving an individual an inaccurately lowered performance appraisal or job reference, even if not unfavorable.
  • Abusive verbal or physical behavior toward an individual that is reasonably likely to deter protected activity, even if it is not sufficiently severe or pervasive to create a hostile work environment.
  • Any other action that might well deter a reasonable individual from engaging in protected activity.

The proposed guidance states that to the extent lower courts have found that some of these actions are not significant enough to deter protected activity, “the commission concludes that these decisions are contrary to the broad reasoning and examples provided by the Supreme Court.”

However, the EEAC stated, “Respectfully, the commission does not have the legal authority to draw such legal conclusions; indeed, only Congress, or the courts, may decide which legal authorities are, or are not, binding on the EEOC.”

Creating a Mountain of Work?

The EEOC’s proposed guidance is creating unnecessary work for the agency, according to Amy Ryder Wentz, an attorney with Littler in Cleveland, and Kevin Kraham, an attorney with Littler in Washington, D.C., who co-authored the firm’s comments.

“If the proposed enforcement guidance accurately reflected the definition of ‘protected activity’ under Title VII [of the Civil Rights Act of 1964] and other EEO laws, the commission would have far fewer charges that required investigation, which would mean fewer charges for employers to defend,” they wrote to SHRM Online in an e-mail. “But that is not the case with the draft enforcement guidance. The expanded definition of ‘protected activity’ will likely result in the expenditure of more time and resources defending charges that previously would not have existed.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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