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At the end of August of this year, the EEOC (U.S. Equal Employment Opportunity Commission) released a transmittal entitled “EEOC Enforcement Guidance on Retaliation and Related Issues” (the “Guidance”).  The Guidance “provides guidance regarding the statutes enforced by the EEOC. It is intended to communicate the Commission’s position on important legal issues.  [It] supersedes the EEOC Compliance Manual Section 8: Retaliation (1998).”

According to the Guidance, “Retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces.”  A claim for retaliation contains three elements:

“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.”

The terms “participation” and “opposition” are broadly construed by the EEOC and the courts.  Participation, not necessarily subject to a “good faith” standard, and opposition taken in good faith by an individual, even if the acts complained of are ultimately deemed lawful, are protected under the law.  Any opposition must be reasonable and not the subject of numerous “specious” complaints.

The Guidance contains a number of examples of what may constitute protected opposition.  these include a complaint to an employer of a “good faith belief” of a discriminatory act;  complaints to management consistent with a legal position of the EEOC; complaints regarding sexual harassment even if not yet severe or pervasive;  corroborating a co-worker’s complaint of sexual harassment; refusal to obey an order reasonably believed to be discriminatory; advising an employer on EEOC compliance; resisting sexual advances or intervening to protect others.

The anti-retaliation provisions make it unlawful to take a materially adverse action against an individual because of protected activity.  Once again, this element is read expansively to reach “…any action that is “materially adverse,” meaning any action that might well deter a reasonable person from engaging in protected activity.”  The analysis in this regard is “fact driven” and the Commission rejects the position taken by some courts that some actions viewed by the EEOC as materially adverse actions categorically cannot be significant.  Once again, the Guidance contains examples of materially adverse actions.

Finally, a complaint of unlawful retaliation must contain the element of “causal connection” between a materially adverse action and the protected activity.  In some instances, this requires a “but for” test that the adverse action was at least one of the causes of the retaliation complained of, it need not be the sole cause of the retaliation.  In other instances, a “motivating factor” test is applied.  The employee must show that it is “more likely than not” that retaliation has occurred.

The Guidance is lengthy and contains numerous examples of what conduct may or may not be retaliatory in nature based on the various elements of a retaliation claim.

The recent Presidential election may change the regulatory landscape so it is important to seek legal advice regarding a claim of retaliation in the workplace. For assistance in determining whether or not retaliation has occurred under employment laws and regulations, particularly in light of the Guidance, contact a PK Law Labor and Employment Attorney.

This information is provided for general information only. None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.