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Proposed guidance broadens interpretation of what is considered unlawful
Revenge isn’t so sweet when it takes the form of unlawful retaliation. Retaliation can stifle employees from coming forward and disclosing what they know during internal investigations. It can result in unlawful discharge, including sometimes the termination of HR practitioners when they are trying to perform equal employment opportunity (EEO) functions. And it can result in compensatory and punitive damages against a company.
New Equal Employment Opportunity Commission (EEOC) proposed guidance takes an aggressive stance against retaliation, broadly interpreting this most-frequently alleged type of discrimination.
Since 2009, retaliation charges eclipsed race discrimination as the most common basis for a filing of discrimination. Nearly 43 percent of all private-sector charges filed in 2014 included retaliation claims—roughly twice as many as in 1998, which was the last time the EEOC issued guidance on retaliation.
The EEOC explained in its Jan. 21 proposed updated guidance that a retaliation claim must include:
“An employee does not have to oppose any employer conduct to be engaged in protected activity,” noted Salvador Simao, an attorney with FordHarrison in Berkeley Heights, N.J. “Employees who voluntarily participate in employer investigations into EEO allegations, or even provide neutral or pro-employer information about an alleged violation, or employees who request accommodation of disability or religious practices, can be engaged in protected activity.”
In the past, courts have held that participation in EEO activity applies to internal company investigations only when conducted in conjunction with a formal EEOC charge. Not so, according to the EEOC.
The proposed guidance stated that the commission “views ‘participation’ as encompassing internal EEO complaints to company management, human resources or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.” Participation in an EEO process also might include being a witness.
The EEOC acknowledged that employers can still discipline employees who have raised an EEO allegation—the participation clause does not “immunize” workers from performance management.
Suppose an employee believes she has not been promoted to a managerial position because of sex discrimination, the agency hypothesized. She posts on Facebook: “Anyone know a good EEOC lawyer? Need one now.” Management sees the post and shares it with HR. Less than a week later, the plaintiff is discharged. She claims it was retaliatory. But the employer alleges the termination was due to an audit that revealed the plaintiff had extensively worked unauthorized overtime and repeatedly violated company finance procedures. The documentation of these violations all lined up. So, the employee cannot prove retaliatory discharge.
But employers are skating on thin ice if they discharge someone who has made a discrimination complaint and has no documented performance problems.
“Too many managers think that they can take an adverse action against an employee who has made a baseless complaint,” according to David Garland, an attorney with Epstein Becker Green in the firm’s New York City and Newark, N.J., offices. “But even if the complaint is baseless, the employee may still have a viable retaliation claim, unless the complaint was made in bad faith or for some other illegitimate reason.”
Michael Schmidt, an attorney with Cozen O’Connor in New York City, said that most employers are aware that they risk facing a retaliation claim when they terminate someone. “However, more current employees—as opposed to just those already terminated—believe that they are protected today simply by raising any kind of employment-related concern, and when they believe that some action is taken against them even short of termination,” he said.
The opposition clause is defined expansively as well, the EEOC said in the new draft guidance, citing the Supreme Court in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271 (2009). The guidance noted that opposition protects all employees, including those in HR and managers.
Examples of protected opposition included:
Reprisal for discussing compensation may implicate EEO laws and the National Labor Relations Act, the guidance noted. That issue may not be on employer’s radar, said Jay Hux, an attorney with Fisher & Phillips in Chicago.
Some of the guidance’s illustrations of protected opposition reflect recent EEOC positions. One example said, “An employee believes he is being harassed by co-workers based on his sexual orientation, and complains to his manager and human resources. This is protected activity under Title VII [of the Civil Rights Act of 1964], because in light of EEOC’s stated legal position and enforcement efforts, individuals could have a reasonable belief that sexual orientation discrimination is actionable as sex discrimination under Title VII.”
In defending itself from any number of types of retaliation claims, Hux emphasized that it’s particularly important for an organization to be able to show consistent enforcement of rules and for any discipline to be well-documented.
“There’s no shortcut for administering policies in the correct way,” he stated.
Comments on the proposed guidance are due Feb. 24.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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