Retaliation (Title VII)

Executive Summary: The EEOC has issued its final Enforcement Guidance regarding retaliation claims. The Enforcement Guidance emphasizes the agency’s broad interpretation of the protections afforded to employees who participate in EEO proceedings or complain about discriminatory practices.

In the spring, we notified you that the U.S. Equal Employment Opportunity Commission (EEOC) proposed changes to its guidance on workplace retaliation. The EEOC recently released its final enforcement guidance, which replaces its 1998 Compliance Manual section on retaliation.

Do employers possess the fundamental right to communicate with current or former employees to inform them about (1) a current or former employee’s filing of a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and (2) the EEOC’s subsequent request for information about those current or former employees as potential witnesses in the case?

The number of charges filed with the U.S. Equal Employment Opportunity Commission rose in the Commission’s last fiscal year, and the amount of money the agency recovered through administrative enforcement and litigation rose sharply in 2015 over 2014. (The fiscal year runs from October 1 to September 30.)

The U.S. Equal Employment Opportunity Commission recently proposed changes to the guidance it issues on workplace retaliation, which could drastically expand the definition of retaliation. The proposed changes, the first in nearly 20 years, are intended to update the EEOC Compliance Manual on Retaliation. Although the compliance manual does not have the authority of a regulation or administrative decision, the EEOC’s investigators heavily rely upon it in their examination of employee complaints. The shifting definition of retaliation creates uncertainty for employers in complying with the law, and is a sign of the EEOC’s complainant-friendly philosophy.

Late last month, on January 21, the EEOC published its draft EEOC Enforcement Guidance on Retaliation for public comment. The comment period ends on February 24, 2016. These Guidelines would replace the current Enforcement Guidelines, which have been in place since 1998.

On November 17, 2015, the U.S. Court of Appeals for the Fifth Circuit held an employer’s rejection of an employee’s rescission of resignation can “sometimes constitute an adverse employment action” and may be considered retaliation under Title VII. Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners, d/b/a Houma Terrebonne Housing Authority, No. 14-31090 (5th Cir. Nov. 17, 2015). Even though the case was brought under Title VII, the decision continues the trend of expanding the types of employer actions that might constitute retaliation.

Title VII of the Civil Rights Act of 1964 not only prohibits discrimination based on race, color, sex, religion, and national origin, but also prohibits retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. In many jurisdictions, however, the so-called “manager rule” is an exception to Title VII’s anti-retaliation protections.

The extent to which employees who are responsible for investigating or resolving discrimination complaints are protected from retaliation is still up for debate. State and federal discrimination statutes prohibit retaliating against employees who engage in activity pursuant to the same statutes. If the countless managerial employees who routinely investigate discrimination complaints in the normal course of business are found not to be engaging in protected activity, then employers would be free to retaliate against employees who don’t “toe the party line.” However, if those employees are found to be engaging in protected activity, the universe of actionable retaliation claims could balloon. While there has been little case law on this issue — up until this month, only two circuit courts had considered the issue — two additional circuits recently weighed in.

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

People often say it’s not the crime that will do you in, it’s the cover-up. In some ways, that sentiment has been applicable to retaliation claims for alleged discrimination in the workplace. At least until this past Monday, when the U.S. Supreme Court handed down its decision in University of Texas Southwestern Medical Center v. Nassar, Slip Op., No. 12-484 (U.S. Sup. Ct., June 24, 2013).

Executive Summary: On June 24, 2013, the United States Supreme Court heightened the burden of proof for employees bringing retaliation claims under Title VII by holding that employees have to prove that the employer’s desire to retaliate was the “but-for” cause for the employer’s adverse employment action.