RETALIATORY ACTIONS AND THE NEW EEOC COMPLIANCE MANUAL

A few days ago the Equal Employment Opportunity Committee (“EEOC”) traded in their used 1998 Compliance Manual for a brand spanking new manual with all the bells and whistles from the last two decades of jurisprudence.  The new Compliance Manual is packed with useful information on Retaliatory Claims and is over 60 pages long.  Engrav Law Office has taken the time to summarize the info within the new Compliance Manual below:

The following is not legal advice.  If you should need legal advice, Grant Engrav, Partner with Engrav Law Office would be happy to speak with you:  503 320 6863.

What is Retaliation? 

Retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces. The EEO anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response.

What are the elements of a Retaliation Claim? 

A retaliation claim challenging action taken because of EEO-related activity has three elements:

(1) protected activity: “participation” in an EEO process or “opposition” to discrimination,

(2) materially adverse action taken by the employer; and

(3) requisite level of causal connection between the protected activity and the materially adverse action.

I.        WHAT IS ‘PROTECTED ACTIVITY’?

            The Compliance Manual describes two common genres of protected activity.  The first, is Participation, the second is Opposition.

Participation: 

An individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination.

Opposition:

An individual is protected from retaliation for opposing any practice made unlawful under the EEO laws. Protected “opposition” activity broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination.

The manner of opposition must be reasonable, and the opposition must be based on a reasonable good faith belief that the conduct opposed is, or could become, unlawful.

Who is protected from Retaliation for Opposition? 

            The EEOC asserts all employees who engage in opposition activity are protected from retaliation, even if they are managers, human resources personnel, or other EEO advisers.  However, the Compliance Manual explains that a managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause.

II.        WHAT IS A ‘MATERIALLY ADVERSE ACTION’?

Retaliation expansively reaches any action that is “materially adverse,” meaning any action that might well deter a reasonable person from engaging in protected activity.  An action need not be materially adverse standing alone, as long as the employer’s retaliatory conduct, considered as a whole, would deter protected activity.  Although “normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence,” the standard can be satisfied even if the individual was not in fact deterred.

There are two types of Materially Adverse Actions:

1. Work-Related Actions.

• denial of promotion
• refusal to hire
• denial of job benefits
• demotion, suspension
• discharge
• related threats
• warnings
• reprimands
• transfers
• negative or lowered evaluations
• transfers to less prestigious or desirable work or work locations
• taking (or threatening to take) a materially adverse action against a close family member (who could bring a claim as an aggrieved individual in addition to the person who engaged in protected activity)
• requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity
• and any other type of adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity

2. Non-Work Related

• A materially adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it might well dissuade a reasonable person from engaging in protected activity. Prohibiting only employment-related actions would not achieve the goal of avoiding retaliation because “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”

III.       WHAT IS A ‘CAUSAL CONNECTION’?

A materially adverse action does not violate the EEO laws unless there is a causal connection between a materially adverse action and the protected activity.  The retaliatory animus need not necessarily be held by the employer’s official who took the materially adverse action; an employer still may be vicariously liable if one of its agents, motivated by discriminatory or retaliatory animus, intentionally and proximately caused the official to take the action.

• The “But for” Standard is the causation requirement for cases within the private sector and state and local government. The court will ask,  “would the materially adverse action have occurred but for the protected activity taken by the employee?” If the answer is yes, then the causation element has not been met and the retaliatory claim will fail.

• The “Motivating factor” is the causation requirement for Title VII and ADEA Retaliation Claims against Federal Sector Employers. The “motivating factor” causation standard for discrimination claims can be met even if the employer would have taken the same action absent a discriminatory motive.  of Tex. Sw. Med. Ctr. V. Nassar, 133 S. Ct. 2517, 2534 (2013)

How do you prove a ‘causal connection’? 

Preponderance of the evidence (more likely than not) is the evidentiary burden under both causation standards.  The Commission identified five common methods for proving a ‘casual connection’ exists:

1. Suspicious timing.The causal link between the adverse action and the protected activity is often established by evidence that the adverse action occurred shortly after the plaintiff engaged in protected activity
2. Oral or written statements. Oral or written statements made by the individuals recommending or approving the challenged adverse action may reveal retaliatory intent by expressing retaliatory animus or by revealing inconsistencies, pre-determined decisions, or other indications that the reasons given for the adverse action are false. Such statements may have been made to the employee or to others.
3. Comparative evidence. An inference that the adverse action was motivated by retaliation could also be supported by evidence that the employer treated more favorably a similarly situated employee who had not engaged in protected activity. For example, where a disciplinary action was taken for alleged retaliatory reasons, evidence of selective enforcement (i.e., that infraction regularly goes undisciplined in that workplace, or that another employee who committed the same infraction was not disciplined, or was not disciplined as severely) could be sufficient to infer retaliatory motive.
4. Inconsistent or shifting explanations. If the employer changes its stated reason for the challenged adverse action over time or in different settings (e.g., reasons stated to employee in termination meeting differ from reasons employer cites in position statement filed with the EEOC), pretext may be inferred.
5. Other evidence that employer’s explanation was pretextual. There may be other evidence that the employer’s justification for the challenged action is not believable and that the explanation is a pretext to hide retaliation

How are Retaliation Claims defeated?

Employer Unaware of Protected Activity. Retaliation cannot be shown without establishing that the employer (either the decision maker or someone who influenced the decision maker) knew of the prior protected activity.  Absent knowledge, there can be no retaliatory intent, and therefore no causal connection.

Legitimate Non-Retaliatory Reason for Challenged Action. An employer may proffer a legitimate non-retaliatory reason for the challenged action. Examples of non-retaliatory reasons include:

• poor performance;
• inadequate qualifications for position sought;
• qualifications, application, or interview performance inferior to the selectee;
• negative job references;
• misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
• reduction in force or other downsizing.

Though the employer does not have the burden to disprove retaliation, the employer may have evidence supporting its proffered explanation for the challenged action, such as comparative evidence revealing like treatment of similarly situated individuals who did not engage in protected activity, or supporting documentary and/or witness testimony.

The EEOC’s Compliance Manual on Retaliation Claims is over sixty pages long and goes into extensive detail.  The above is recap, covering the essential rules and considerations of Retaliation Claims.  The full Compliance Manual can be found here: 

If you have any questions regarding the above, please feel free to contact Grant Engrav at grantengrav@engravlawoffice.com or by phone at 503 320 6863.