EEOC Issues Retaliation Enforcement Guidance

Any questions on what behaviors constitute retaliation under federal employment discrimination laws and what recourse is available to persons who believe they’ve been retaliated against were answered today when the Equal Employment Opportunity Commission released its final enforcement guidance on retaliation and related topics.

Among the highlights, from a Q&A sheet issued along with the guidance:

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws. Asserting EEO rights is called “protected activity.”

Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy itself could be unlawful if it discourages the exercise of EEO rights.

In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:

  • An individual engaged in prior protected activity;
  • The employer took a materially adverse action; and
  • Retaliation caused the employer’s action

Taking adverse action for discussing compensation may implicate a number of different federal laws, whether the action is pursuant to a so-called “pay secrecy” policy or is simply discipline of an employee in an individual case.

Under EEOC-enforced laws, when an employee communicates to management or coworkers to complain or ask about compensation, or otherwise discusses rates of pay, the communication may constitute protected opposition under the EEO laws, making employer retaliation actionable based upon the facts of a given case. Moreover, talking to coworkers to gather information or evidence in support of a potential EEO claim is protected opposition, provided the manner of opposition is reasonable.

In addition, there are also other federal protections for discussions related to compensation. For example, under Executive Order (E.O.) 11246, as amended by E.O. 13665 (Apr. 8, 2014), enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discharging or otherwise discriminating in any way against employees or applicants who inquire about, discuss, or disclose their compensation or that of other employees or applicants. See https://www.dol.gov/ofccp/. Moreover, the National Labor Relations Act protects non-supervisory employees who are covered by that law from employer retaliation when they discuss their wages or working conditions with their colleagues as part of a concerted activity, even if there is no union or other formal organization involved in the effort. See https://www.nlrb.gov/.

Even if protected activity and a materially adverse action occurred, evidence of any of the following facts, alone or in combination, may undermine a claimant’s ability to prove it was caused by retaliation. For example:

  • The employer was not, in fact, aware of the protected activity.
  • There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as:
    • poor performance;
    • inadequate qualifications for position sought;
    • qualifications, application, or interview performance inferior to the selectee;
    • negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual);
    • misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
    • reduction in force or other downsizing.
  • Similarly-situated applicants or employees who did not engage in protected activity were similarly treated.
  • Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive.

The guidance itself is found here.

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