EEOC Guidance on the Handling of Retaliation Claims
by Darrell R. VanDeusen

The Equal Employment Opportunity Commission ("EEOC") issued new instructions to its staff regarding the investigation of retaliation claims in May 1998. These guidelines come on the heals of a number of court decisions regarding Title VII's scope when an employee claims that he or she has been retaliated against for complaining about perceived discrimination. Not surprisingly, the EEOC's guidelines take a broader view of Title VII's coverage than some of these courts. This outline reviews provisions of the guidelines, which have been placed in the EEOC's Compliance Manual. This outline does not provide legal advice, however, which can only be provided when related to specific fact situations.

What is Protected Activity?

Title VII prohibits penalizing an employee who engages in protected activity under the "opposition clause," which protects employees who complain about discrimination, and the "participation clause," which protects employees who testify or assist others who have complained about discrimination. The guidelines reinforce the EEOC's policy of ensuring protection for employees (1) who protest what they perceive as employment discrimination; (2) who assist in employment discrimination proceedings, or (3) who assert rights under laws enforced by the EEOC. The guidelines also define certain specific protected activity for which retaliation by a present or former employer is forbidden.

Requirements for Filing a Charge of Retaliation.

The guidelines establish the prerequisites for filing a charge of retaliation. First, no independent allegations of unfair treatment based upon race, religion, sex, national origin, age or disability need be made. Second, a former employee can file a charge of retaliation even after the employment relationship has terminated. Third, a retaliation charge made be made by a person who is "related to or associated with" an individual whose activities are protected. An employee may file a charge not only against an employer, but also against an individual supervisor. A retaliation charge should allege:

1. opposition to discrimination or participation in covered proceedings;

2. an adverse employment action; and

3. a causal connection between the protected activity and the adverse action.

Protection Under the Opposition Clause.

The guidelines provide a list of protected activities for which employer retaliation would be considered illegal by the EEOC. The list includes:

1. threatening to file a charge or formal complaint alleging discrimination;

2. complaining to anyone about the alleged discrimination against oneself or others;

3. refusing to obey an order because of a reasonable belief that it is discriminatory; and

4. requesting reasonable accommodations for a disability or religious reasons.

The guidelines stress that an individual's standing to bring a claim of retaliation is not limited to the individual engaged in the opposition. Anti-discrimination laws protect not only the individual actually opposing perceived discrimination, but also others closely related to or associated with the individual.

The opposition clause does not protect every protest of employment discrimination, however. An individual is expected to engage in any "opposition" in a reasonable manner, and the opposition must be based upon a reasonable and good faith belief that there is discrimination occurring that violates one of the laws the EEOC is charged with enforcing.

What is Reasonable Opposition?

To determine the "reasonableness" of opposition, the EEOC recognizes the need to balance the rights of individuals to oppose discrimination and public interest in enforcement of employment laws against an employer's need for a stable and productive work environment. The EEOC explains that reasonable opposition may include informing an employer's customers of the alleged discriminatory practice, or peaceful picketing to oppose an alleged discriminatory practice.

On the other hand, the EEOC stresses that the following conduct is unreasonable, and therefore not protected opposition: copying confidential employer documents regarding alleged discrimination and showing the documents to co-workers; unsupported allegations not raised through the employer's proper protocol; badgering a subordinate employees to give statements supporting an individual's claim; and threats of violence to life or property.

Individuals are protected from retaliation if they have a reasonable and good faith belief that the employment practices they have opposed were illegal under anti-discrimination laws. An individual need not be right, however. Illegal retaliation can occur even when there has been no underlying violation of law.

Likewise, an employer will run afoul of anti-discrimination law if it retaliates against an individual who opposed perceived discrimination elsewhere. This standard is designed to prevent "black-balling" by employers who learn of actions taken elsewhere by prospective employees.

Protection Under the Participation Clause.

The "Participation Clause" prohibits retaliation against individuals who are involved in "making a charge, testifying, assisting, or participating in an investigation, proceeding, hearing, or litigation under Title VII, the ADEA, the EPA, or the ADA." While the opposition clause protects only those individuals whose protests are reasonable and in good faith, the participation clause protects any individual who participates in the statutorily provided complaint process. The EEOC's rationale behind this broader coverage is an effort to inhibit an employer from deciding on its own that a charge is invalid, and then taking unilateral action against an individual who has filed the charge, or an individual who has assisted the charging party in some way.

As with the opposition clause, the participation clause does not require that an individual actually have participated in order to charge retaliation. For example, if a husband participates in an investigation of alleged discrimination, and his wife is fired because of his participation, the wife will have a valid retaliation claim.

What is an Adverse Employment Action?

Not every action taken by an employer rises to the level of an adverse employment action that would form the basis for a claim alleging retaliation. The guidelines provide a list of actions that the EEOC considers "adverse," and that can form the basis for a claim of retaliation. Of course, the most common adverse actions, such as the denial of a promotion, refusal to hire, denial of job benefits, demotion, suspension, discharge and threats, are covered. In addition, however, the EEOC also considers as "adverse" lesser reprimands, negative evaluations, harassment, and the suspending or limiting an individual's access to internal grievance procedure. This standard is far broader than the standard recently set by the United States Court of Appeals for the Fourth Circuit in Munday v. Waste Mgm't of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 118 S. Ct. 1053 (1998).

The EEOC's position is that any adverse treatment based upon retaliatory motive and reasonably likely to deter a charging party or others from engaging in protected activity is illegal. There need be no actual harm in loss of pay or other tangible job benefit.

Proof Necessary to Establish Retaliation.

An individual can establish retaliation through direct or circumstantial evidence.

Direct evidence of retaliatory motive is defined in the guidelines as any written or verbal statement by the employer that indicates the challenged action resulted because the individual engaged in protected activity. Such evidence must also include a written or oral statement by an employer that demonstrates a bias toward the individual based upon the individual's protected activity, along with evidence that links the bias with the adverse action. Where direct evidence of retaliation exists, the employer's evidence of any legitimate motive behind the challenged action will be considered only to determine the relief available to the individual.

Circumstantial evidence that retaliation was the motive behind an adverse action is much more common that direct evidence. The guidelines provide that circumstantial evidence will establish a violation if:

1. evidence raises an inference that retaliation was the cause of the challenged action;

2. The employer produces evidence of a legitimate, non-retaliatory reason for the challenged action; and

3. complainant proves that the reason advanced by the respondent is a pretext to hide the retaliatory motive.

An "inference of retaliation" may result from any correlation between protected activity and an adverse action. This correlation is usually demonstrated by evidence that the adverse action occurred shortly after the protected activity, and the person who undertook the adverse action was aware of the individual's protected activity. The EEOC does note, however, that some cases recognize that the passage of time does not necessarily eliminate the possibility of retaliation.

The guidelines also list the most common defenses to retaliation, such as poor job performance, inadequate qualifications for position sought, insubordination, violation of work rules, and truthfulness of the information in negative job reviews. The EEOC states that even a valid non-retaliatory explanation for taking adverse action will result in a finding of illegal retaliation if the explanation is a pretext to mask retaliatory action. The EEOC characterizes pretext as treating the charging party differently from other employees in the same positions, or when the explanation for adverse action is "simply unbelievable." Pretext can also be demonstrated if the employer subjected the individual to a higher level of scrutiny than other employees after he or she engaged in protected activity.

Remedies Available to Individuals.

The remedies for retaliatory violations range from temporary and preliminary relief to compensatory and punitive damages. Under Title VII and the ADA, the EEOC may seek temporary injunctive relief when prompt judicial action is needed to prevent a retaliatory action from occurring. The ADEA and EPA do not provide for such interim relief. However, the EEOC may seek temporary injunctive relief through a federal lawsuit that seeks permanent relief. The EEOC takes the position that temporary relief is appropriate when there is substantial likelihood that the challenged activity constitutes unlawful action and the charging party or the EEOC is likely to suffer irreparable harm if it is not immediately stopped.

The EEOC takes the position that all anti-discrimination laws provide for compensatory as well as punitive damages for illegal retaliation. Unlike Title VII and the ADA, neither the EPA nor the ADEA places statutory caps on compensatory and punitive damage awards. The EEOC states that the prerequisite for an award of punitive damages is evidence that the retaliation was the result of malice or reckless indifference to the federally protected rights of an aggrieved individual. Not surprisingly, the EEOC takes the position that punitive damages are appropriate in most retaliation claims brought under statutes enforced by the EEOC.

Conclusion.

These new guidelines are effective immediately, and will govern all further EEOC investigations. As mentioned above, some aspects of the guidelines are inconsistent with existing case law, and it will be up to various appellate courts to set the tone for interpretation of retaliation standards at the judicial level. Until that time, however, employers are well advised to carefully review any personnel actions affecting individuals who have opposed or participated in any way in opposing perceived discrimination.

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