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EEOC Issues Final Enforcement Guidance for Retaliation Claims

on Tuesday, 18 October 2016 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On August 25, 2016, the U.S. Equal Employment Opportunity Commission issued final enforcement guidance regarding retaliation claims made under Title VII of the Civil Rights Act of 1964. The guidance also covers retaliation under the Age Discrimination in Employment Act (ADEA), Section 501 of the Rehabilitation Act, Title II of the Genetic Information Nondiscrimination Act (GINA), the Equal Pay Act (EPA), and Title V of the Americans with Disabilities Act (ADA). The EEOC’s guidance discusses a number of topics. Among these topics are the legal test used to evaluate retaliation claims, an explanation of what constitutes protected employee activity under the various laws, and a description of the remedies available to employees who face unlawful retaliation.

In its guidance, the EEOC lays out the legal analysis used to evaluate the merits of a retaliation claim. As explained by the guidance, legal proof of retaliation includes evidence that 1) the employee engaged in prior protected activity, 2) the employer took a materially adverse action, and 3) there is a requisite level of causal connection between the employee’s protected activity and the employer’s materially adverse action. The guidance emphasizes that a retaliation claim will not succeed against a private sector or state or local government employer unless “but for” a retaliatory motive, the employer would not have taken adverse action against the employee.

The EEOC clarifies that protected activity includes both “participating” in an EEO process and “opposing” discrimination. The term participation is defined narrowly and refers to raising a discrimination claim, testifying, assisting, or participating in an investigation or similar activity under EEO laws. Conversely, the term opposition covers a broader range of activities and includes the many ways in which an employee explicitly or implicitly communicates his opposition to perceived employer discrimination. Despite the fact that it covers a broader range of activities, opposition activity is only protected if the individual who takes such action does so with a reasonable good faith belief that a potential EEO violation is taking place. The individual must also act in a reasonable manner to oppose the potential EEO violation. According to the guidance, some examples of unreasonable opposition include 1) making a high number of patently false claims and 2) badgering a subordinate to give a witness statement in support of an EEOC charge and subsequently coercing the subordinate to change that statement. Additionally, any activity that involves an unlawful act, such as a threat of violence, is not reasonable opposition.

Lastly, the guidance describes the remedies that are available to a worker who makes a retaliation complaint. First, an employee may seek temporary or preliminary relief. This type of relief allows a court to stop retaliation before it occurs or continues. An employee may also seek compensatory and punitive damages for retaliation. The availability of and monetary caps on such damages vary based on the law under which the employee claims retaliation. For example, an employee may seek punitive damages under Title VII or GINA only where an employer acts with malice or reckless indifference to an employee’s rights, and such damages have a monetary cap. Conversely, an employee seeking damages under the EPA or ADEA need not show that the employer acted with malice or reckless indifference, and damages under these laws are not subject to a cap. Lastly, under all of the laws enforced by the EEOC, an employee may seek back pay if the employer’s alleged retaliation led to the employee’s termination, constructive discharge, or a similar action. The employee may also seek front pay or reinstatement.

Employers can find the full text of the EEOC guidance here

Sara A. McCue

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