The EEOC has issued a proposed revision to its guidance on workplace retaliation—the first since 1998—that could radically change how enforcement authorities and courts define retaliation and its causes. The result, say legal experts: Even more retaliation lawsuits and more wins for employees who file them.
Retaliation is the most frequently alleged EEOC violation. Nearly 45% of EEOC charges filed in fiscal year 2015 included retaliation claims, almost double the 1998 percentage.
According to Ogletree Deakins attorneys H. Bernard Tisdale and Parker R. Himes, “The guidance confirms the EEOC will find protected activity and retaliatory animus in nearly all situations in which an employee subjectively believes the employer has retaliated.”The most important change, they say: A definition of retaliation that is based on a looser “causal connection between an adverse employment action and prior protected activity.” Traditionally, the EEOC looks for a direct cause-and-effect relationship to identify retaliation—for example, an employee discrimination complaint followed shortly by a demotion.
Now the EEOC wants to rely on a “convincing mosaic” of circumstantial evidence that retaliation may have occurred.
The new guidance also expands the definition of “protected activity.” It gives far greater weight to an employee’s subjective belief that he or she experienced retaliation for complaining in good faith about a hostile work environment, even if it is later shown that a hostile environment didn’t exist.
That standard contradicts numerous court rulings on hostile environment harassment and retaliation.
Also redefined in the new guidance: Exactly what constitutes “adverse action” in the retaliation context.
Common sense guidance
It’s more important than ever to treat all employees equally in day-to-day management and discipline. Never try to “get back at” employees who complain about discrimination, safety or financial violations.
That doesn’t mean that employees who voice complaints are untouchable. You can still discipline such employees for legitimate performance and behavior issues. Just make sure you’ve taken the same actions with all employees. And document the reasons for your decisions.
Ask yourself these two questions before taking disciplinary action against employees who’ve recently complained about discrimination (either formally or informally):
1. “Why am I taking this action now?” Scrutinize the reason and timing of your action. Is there any connection to the person’s complaint? If it smells even a bit like retaliation for the complaint, a jury could see it that way, too.
2. “Would I take this action with my best employee?” If your answer is “no,” you could be open to a retaliation charge. If your answer is “yes,” make sure that you document the basis for your decision before proceeding.
Retaliation: Beware the perception of punishment
The following actions may or may not support an employee’s retaliation claim. It would depend on the specific facts of the situation. But even if your company doesn’t suffer a courtroom loss, an employee’s perception of retaliation can put a drain on company coffers. Consider these managerial actions that often give off a perception of retaliation to employees and a court.
- Transfers. Lateral transfers are generally not considered an adverse employment action when there is no loss in benefits or decrease in responsibilities. It’s not enough if the employee merely does not like the new position. However, if the transfer can be seen as a demotion, it might be.
- Low performance ratings. Sudden and uncharacteristic drops look fishy—unless you have legitimate proof that they are justified. Also beware of managers holding employees to higher standards or stricter levels of scrutiny than their co-workers.
- New work assignments. A change in work assignments typically will not constitute an adverse employment action if the employee retains his or her same shift, benefits and pay, and the new assignment is consistent with previous job duties. Singling an employee out for grunt work or menial tasks, or giving an employee a heavier workload for no apparent reason, however, could be considered retaliatory.
- Doling out discipline. OK: discipline that is deserved. Filing a complaint does not shield employees from the consequences of any subsequent misbehavior. Risky: issuing harsh discipline for minor infractions or disciplining an employee for infractions that others are allowed to get away with.
