The EEOC has released final enforcement guidance for retaliation claims under its purview of various federal employment laws (including Title VII, Age Discrimination in Employment Act, Americans with Disabilities Act, Rehabilitation Act, Equal Pay Act, and Genetic Information Nondiscrimination Act). This guidance replaces the EEOC’s 1998 Compliance Manual on retaliation issues and also addresses ADA interference claims.

Protected Activity. The enforcement guidance sets forth the EEOC’s interpretation of the current law regarding retaliation and is intended to explain such issues with concrete examples. Generally speaking, retaliation occurs when an employer takes an adverse employment action against an employee (current or former) or job applicant because he/she has engaged in activities protected by federal EEO laws — in particular, raising complaints or participating in investigations about potential EEO violations or otherwise opposing discrimination. Examples of protected opposition include actions such as:

• complaining or threatening to complain about alleged discrimination against oneself or others
• providing information in an employer’s internal investigation of an EEO matter
• refusing to obey an order reasonably believed to be discriminatory
• advising an employer on EEO compliance (human resources employee)
• resisting sexual advances or intervening to protect others
• passive resistance (allowing others to express opposition)
• requesting reasonable accommodation for disability or religion

Employee participation in a complaint process is protected from retaliation in all circumstances and other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that such practices may violate EEO laws. Employees are protected regardless of whether they are complaining about employer conduct towards themselves or others; employees who complain about conduct that affects others do not have to witness such conduct to report it or be protected.

Materially Adverse Actions. Retaliation includes any employer action that is “materially adverse,” which the EEOC describes as one that “might deter a reasonable person from engaging in protected activity.” This is not limited to a denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, or discharge (actions that may themselves be challenged directly as employment discrimination). Depending on the particular circumstances at issue, the definition of “materially adverse” may also include other employer actions that are work-related, actions that have no tangible effect on employment, or even an action that takes place exclusively outside of work. The Supreme Court has previously determined that the following constitute “materially adverse” actions:

• transferring a worker to a harder, dirtier job within the same pay grade
• suspending an employee without pay for more than a month (even though pay is later reimbursed)
• the FBI’s refusing to investigate death threats against an agent
• filing of false criminal charges against a former employee
• changing the work schedule of a parent who has caretaking responsibilities for school-age children
• excluding an employee from a weekly training lunch that contributes to professional advancement

But a petty, slight, or minor annoyance, trivial punishment, or any other action that is not likely to dissuade the employee from engaging in protected activity under the circumstances is not “materially adverse.” For example, temporarily transferring an employee from an office to a cubicle and occasional brief delays by an employer in issuing refund checks that involved small amounts of money to an employee are likely not considered “materially adverse.”

The EEOC has identified the following specific examples of other “materially adverse” actions that may be retaliation (again, dependent on the specific circumstances):

• work-related threats, warnings, or reprimands
• negative or lowered evaluations
• transfers to less prestigious or desirable work or work locations
• disparaging or making false reports to government authorities or in the media
• filing a civil action
• threatening reassignment
• scrutinizing work or attendance more closely than that of other employees, without justification
• removing supervisory responsibilities
• engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment
• requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity
• terminating a union grievance process or other action to block access to otherwise available remedial mechanisms
• taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee)

Employer Defense. As with retaliation claims generally, an employer may defend against such accusations by showing that it had a legitimate, non-retaliatory business reason for the employment action. In other words, that the employer was not motivated by retaliatory intent. If an employer’s explanation for the adverse action is shown by the employee to be false, however, unlawful retaliation will be inferred. Permissible non-retaliatory employer motivations include an employee’s poor work performance, inadequate qualifications for the position, inferior qualifications, application, or interview performance, negative job references, misconduct (such as threats, insubordination, unexcused absences, dishonesty, abusive or threatening conduct, or theft), and reductions in force or other downsizing.

ADA Interference. The ADA prohibits not only retaliation, but also employer interference with an employee’s exercise or enjoyment of ADA rights. The ADA’s interference provision is broader than its anti-retaliation, and it prohibits an employer from coercing, intimidating, threatening, or otherwise interfering with an individual’s exercise of ADA rights (or assistance of others to exercise or enjoy ADA rights). Examples of such unlawful employer interference include:

• coercing an individual to relinquish or forego an accommodation to which he/she is otherwise entitled
• intimidating an applicant from requesting accommodation for the application process by indicating that such request will result in the applicant not being hired
• threatening an employee with loss of employment or other adverse treatment if he/she does not voluntarily submit to a medical examination or inquiry that is otherwise prohibited under the ADA
• issuing a policy or requirement that purports to limit an employee’s right to invoke ADA protections (such as an employer’s fixed leave policy stating that “no exceptions will be made for any reason”)
• interfering with a former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the lawsuit is filed
• subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he/she assisted a coworker in requesting a reasonable accommodation
• pressuring employee not to advise coworker of right to reasonable accommodation
• refusing to consider accommodation unless employee tries medication first
• warning employee not to request accommodation (or he/she “will be sorry”)
• conditioning informal accommodation on withdrawal of a formal accommodation request
• threatening employee with adverse action if he/she does not forego accommodation previously granted
• refusing to consider applicant unless he/she submits to unlawful pre-employment medical examination

A threat does not have to be carried out in order to violate the ADA’s interference prohibition, nor does the employee actually have to be deterred from exercising or enjoying ADA rights. Further, the EEOC notes that the ADA’s interference provision does not apply to all conduct or statements an individual finds intimidating, but only prohibits conduct that is reasonably likely to interference with the exercise or enjoyment of ADA rights.

Suggested Practices. The updated enforcement guidance also includes a list of what the EEOC describes as “promising practices” that employers may want to consider or implement to minimize the risk of retaliation violations and potential claims. Suggested policy, training, and organizational changes include:

• Employers should maintain a written, plain-language anti-retaliation policy and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and what not to do. The written policy should include examples of retaliation, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for employee concerns about retaliation, and a clear explanation that retaliation may be subject to discipline (up to and including termination).
• Employers should consider revisions to formal or informal policies that may deter employees from engaging in protected activity, such as policies that would impose materially adverse actions for inquiring, disclosing, or otherwise discussion wages.
• Employers should train all managers, supervisors, and employees on the employer’s written anti-retaliation policy, send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.
• Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
• Employers should check in with employees, managers, and witnesses during the pendency of EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester and to reassure employees and witnesses of the employer’s commitment to protect against retaliation.
• Employers should require decision-makers to identify their reasons for taking consequential actions and ensure that necessary documentation supports the decisions, scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.

Question and Answers and Small Business Fact Sheet have been published by the EEOC for additional assistance in complying with the more lengthy enforcement guidance document.

By Rebecca D. Stanglein, RStanglein@dsda.com