EEOC Retaliation Guidance, Part 1: You gotta be “protected”!

The Equal Employment Opportunity Commission issued last week a proposed Enforcement Guidance on Retaliation and Related Issues that would update guidance issued in 1998. If you’re an in-house attorney or a Human Resources professional, I recommend that you read the whole thing. But to keep things digestible on this blog, I’m going to do a series of posts (three in all, I think, but I might need four) on the highlights.

Before we dig in, a plaintiff in a retaliation case has to prove three things:

1. She engaged in “legally protected activity,” and
2. She suffered an “adverse employment action,” and
3. There is a “causal connection” between the legally protected activity and the adverse action.

This week, I want to talk about No. 1: “legally protected activity.”

Most employers know that just about everything can be considered “legally protected activity” these days. There isn’t much in the EEOC’s proposed guidance that will change your mind, but for the most part I think the agency’s position is consistent with court decisions and the statutes.

Participation versus Opposition

There are two types of protected activity: “participation,” and “opposition.” “Participation” includes includes formal activity such as filing an EEOC charge, testifying in a discrimination case, providing evidence, and the like. The EEOC’s position is that it also includes some internal complaints of discrimination, especially when they’re made following the proper chain of command for such complaints (for example, by going to the company’s Human Resources department or EEO compliance director).

The EEOC’s position is that an individual engaged in “participation” activity does not have to be “reasonable,” either in his belief that discrimination occurred or in his manner of presenting himself. The participation can even be wrong, defamatory, and even malicious.

In fact, the EEOC specifically said that it disagreed with a court decision from 2013 that threw out a retaliation claim in which the plaintiff was fired after he “‘stalk[ed] out’ of an EEOC arranged mediation after shouting at the employer’s representative ‘you can take your proposal and shove it up your a** and fire me and I’ll see you in court.’”

On the other hand, the EEOC stops short of saying an employee is protected if he or she is caught falsifying evidence or committing perjury.

Thank heaven for small favors, huh?

“Opposition” activity is less formal, and can include things like telling your supervisor that it seems as if the women don’t make as much money than the men, or talking to your co-workers about your pay and comparing notes, or asking for a reasonable accommodation (for disability or religion or, presumably, pregnancy), or disobeying or “passively resisting” an order that you think is discriminatory.

Employers need not refrain from taking appropriate action in response to an employee’s conduct or performance problems even if that employee has filed an EEO charge or engaged in other protected activity. At the same time, it is important to recognize that some managers may be angry or hurt . . .. Therefore, if a manager recommends an adverse action in the wake of an employee’s charge filing or other protected activity, employers may reduce the change of potential retaliation by independently evaluating whether the adverse action is appropriate. –– EEOC’s Proposed Enforcement Guidance on Retaliation and Related Issues (2016).

“Opposition” activity, unlike “participation” activity, has to be objectively reasonable. That means the employee has to “reasonably” believe that the employment practice she’s complaining about is unlawful, and it also means that she has to express her opposition in a “reasonable” manner.

“Fun” Facts About Protected Activity

1. Consistent with decisions from the U.S. Courts of Appeal for the Fourth and Sixth circuits, the EEOC is taking the position that there is no “manager rule” exception for retaliation claims brought by individuals whose jobs require them to handle the employer’s EEO issues.
2. “Public” opposition to an employer’s alleged discriminatory practices may be protected. This could include “letter writing, picketing, or engaging in a production slow-down,” or failure to follow the chain of command.
3. An internal complaint of harassment would be “reasonable” opposition activity, even if the behavior being complained about wasn’t “severe or pervasive.” If you want to actually file a charge or sue for harassment, the alleged behavior does have to be severe (really bad) or pervasive (happens a lot). But (correctly, in my opinion) the EEOC takes the position that employees have to be able to complain internally before the behavior reaches the “illegal” level so that the employer can address it and stop it as soon as possible. For this reason, the EEOC and some courts take the position that an internal complaint about mere “inappropriate behavior” would still be a legally protected complaint that an employee should be able to make without fear of retaliation.
4. Even if the employee’s statement or evidence is neutral, or favorable to the company, the behavior will be protected. (An interesting point, and probably correct, but as a practical matter it’s hard to envision many employees being able to prove that they were retaliated against because they supported the company.)
5. Even if the employee doesn’t know whether the behavior he complains about is illegal, his complaint may be protected if it could reasonably be interpreted as being about illegal behavior. “Similarly,” the EEOC says, “it is reasonable for an employee to believe conduct violates the EEO laws if the Commission, as the primary agency charged with enforcement, has adopted that interpretation.” As an example, they give an employee who complains about sexual orientation discrimination in the workplace. As our readers know, the EEOC has taken the position that this type of discrimination violates Title VII, although it is far from clear that the courts would agree. No matter – if an employee complains about sexual orientation discrimination, then the complaint would reasonably be construed as a complaint about unlawful discrimination – even if it turns out that it isn’t.

Next week, we’ll talk about “adverse employment action.” By the way, the EEOC is accepting public input on this proposed Guidance for 30 days from last Thursday, January 21.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.