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5 New Challenges for Employers Facing Retaliation Allegations - the EEOC’s Proposed Enforcement Guidance on Retaliation

By Teeka K. Harrison

On January 21, 2016, the EEOC issued for public comment its proposed enforcement guidance on retaliation, which has not changed since 1998.  Upon a close look, the EEOC is doing much more than “updating” its guidance based upon recent court opinions.  The guidance takes an interpretive and liberal view, consistent with the EEOC’s efforts to expand protections for employees, well beyond case law precedent.

Here are five things the proposed guidance does that employers should be prepared to address:

1.  Expands the definition of “participation” protected activity.  According to the EEOC’s proposed guidance, internal complaints and participating in internal investigations will be treated as protected “opposition” to unlawful activity and protected “participation” in an EEO proceeding.  The Supreme Court in Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn. declined to answer whether such activity is protected under the “participation” clause.  And, despite listing courts that have rejected this interpretation, the EEOC plans to apply it.  To be protected under the “opposition” clause, an employee must have a reasonable good-faith belief that the conduct complained about is unlawful.  By contrast, the “participation” clause does not have such a requirement.  By interpreting internal complaints and investigations to constitute “participation,” the EEOC has essentially removed this important distinction.

2.  Instructs that employer-side employees are protected.  The proposed guidance maintains that employees who give information in support of employers (i.e., do not oppose unlawful conduct) are protected by the participation and opposition clauses.  Employers should be on guard because it is counterintuitive to reasons an employee might seek protection from retaliation.

3.  Lowers the bar for harassment complaints.  The EEOC’s guidance seeks to lower the bar for when harassment complaints constitute protected activity.  Now, “reporting even a single incident” of alleged harassment is protected if the employee reasonably believes that a hostile work environment may occur in the future—i.e., a complaint does not have to rise to the level of “severe or pervasive.”  It may behoove employers to investigate such complaints as well, as the EEOC’s guidance explains that failure to investigate can constitute a materially adverse action.

4.   Rejects the “manager rule.”  The proposed guidance rejects what has been adopted by some courts as the “manager rule.”  This concept requires that managers who are responsible for investigating EEO violations or enforcing EEO policies step outside of their management role to engage in protected activity.  The EEOC’s interpretation requires employers to be more alert when handling personnel issues for managers in such roles.

5.  Promotes agency comingling.  The EEOC’s proposed guidance encourages cooperation with other enforcement agencies, such as the Wage and Hour Division of the DOL, the OFCCP, and the NLRB.  Employers should be prepared to handle inquiries from other agencies if charge allegations develop beyond EEO matters, and narrowly respond to charges and requests for information.

Although the EEOC’s guidance is not binding law, it instructs the EEOC’s personnel when processing and investigating charges, including making cause determinations and pursuing litigation.  If this guidance is officially adopted, employers should review their retaliation policies, procedures, and training and balance this new guidance with well-established legal precedent.