The Equal Employment Opportunity Commission (“EEOC”) is considering easing the burden a complaining employee faces to establish a claim for retaliation in proposed revisions to its Enforcement Guidance on Retaliation (“Guidance”). The EEOC’s Guidance is essentially the manual investigators follow in reviewing complaints of discrimination or retaliation. The Guidance was last amended in 1998. Since that time, the number of retaliation charges filed with the EEOC has essentially doubled. By 2015, retaliation claims were the most frequently filed charges, representing 44.5 percent of all charges filed. The EEOC’s most recent Guidance is unlikely to stem the tide of retaliation claims.
 
The 2016 Guidance reflects an expanded view by the EEOC of what evidence an employee may present to establish a retaliation claim. This will make it easier for an employee to state a claim of retaliation and, consequently, harder for an employer to defend. Although these are only proposed regulations (we currently are awaiting final regulations to be issued), they give great insight into how the EEOC views retaliation. The proposed guidance can be accessed here.
 
A Summary of the Proposed Guidance
 
The Guidance does not revise the definition of retaliation or the elements of a claim. Retaliation occurs when “an employer unlawfully takes action against an individual in punishment for exercising rights protected by the EEO laws.” A claim of retaliation requires proof that:
 

1. He/she engaged in Protected Activity;
2. The employer took Adverse Action against the employee; and
3. There is a Causal Connection between the protected activity and the adverse action.

 
What the Proposed Guidance does do is expand greatly the categories of evidence that will meet the above three elements.
 
Protected Activity
 
An employee engages in protected activity when they “participate” in an EEO activity or “oppose” any practice made unlawful by anti-discrimination statutes. In the Guidance, the EEOC takes the position that an employee is engaged in protected activity even if the underlying discrimination claim fails and regardless of the reasonableness of the underlying allegations.
 
The Guidance reflects that “participation” includes internal EEO complaints made prior to the filing of a formal charge with the EEOC or other state counterpart. The EEOC takes a similarly broad view on the issue of opposition stating that an individual has engaged in protected opposition activity if they “explicitly or implicitly communicate a belief that the employer may be engaged in employment discrimination.” The Guidance rejects the so-called manager rule and finds that all employees, including human resource personnel, managers and supervisors, are protected when engaged in oppositional conduct. According to the EEOC, the focus should be on the oppositional nature of the conduct, not the employee’s job duties.
 
Expanded Definition of Adverse Action
 
The EEOC Guidance broadens the definition of “adverse action,” which generally includes any action that is “materially adverse” meaning it “might well deter a reasonable person from engaging in protected activity.” By expanding this definition, the EEOC would make it easier for an employee to establish the second prong of a claim of retaliation.
 
Greater Circumstantial Evidence Considered as Causal Connection
 
Historically, the “causal connection” prong has been the most difficult for employees to prove. The Guidance seeks to make it easier for an employee to establish that causal connection. According to the EEOC, an employee may discredit an employer’s explanation (the legitimate, non-discriminatory reason for the adverse action) and demonstrate the required causal connection through a “convincing mosaic of circumstantial evidence that would support the inference of retaliatory animus.” This “convincing mosaic” can include:
 

• suspicious timing,
• verbal or written statements,
• comparative evidence that a similarly situated employee was treated differently,
• falsity of the employer’s proffered reason for the adverse action, or
• any other “bits and pieces” from which an inference of retaliatory intent might be drawn.

 
The “convincing mosaic” is a rather amorphous standard that is not defined in the Guidance. What is abundantly clear, however, is that the EEOC is trying to expand the scope of conduct that an employee can point to in order to satisfy the third prong of a retaliation claim.
 
EEOC Best Practices
 
The EEOC concluded its proposed Guidance with a number of best practices that it believes will minimize the likelihood of retaliation violations. These best practices include:
 

1. Written Employer Policies: The policy should use plain language, include examples of what to/not to do, and provide guidance on the employer’s expectations.
2. Training: Employers should train all managers, supervisors and employees on the employer’s written anti-retaliation policy.
3. Proactive Advice and Support: All parties involved in an investigation should receive information about the company’s anti-retaliation policy. Managers and supervisors accused of discrimination should be debriefed and given guidance on how to handle any personal feelings about the allegations so as to avoid any claim of retaliation.
4. Proactive Follow-up: The employer should follow-up with involved parties in an investigation to determine if there are any concerns about retaliation, which will identify issues before they fester and will additionally protect against retaliation.
5. Review Consequential Employment Action to Ensure EEO Compliance: An appropriate employer representative (i.e., HR or counsel) should review proposed employment actions to ensure they are based on legitimate, non-discriminatory reasons.

 
Again, this Guidance is not yet in final form and may well be subject to revision. However, employers should familiarize themselves with the proposed Guidance as it is great insight into the priorities of the EEOC and the rules that guide its decision-making.
 
If you have any questions regarding this or for any other labor & employment matter, please contact us.