Following is a summary of new guidance from the EEOC regarding how it enforces provisions of various laws protecting federal employees—and others covered by those laws—from retaliation for exercising their own rights under those laws or for supporting others who exercise their rights.
1. What is retaliation?
Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws. Asserting EEO rights is called “protected activity.”
Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy itself could be unlawful if it discourages the exercise of EEO rights.
2. What must someone show to prove a legal claim of retaliation?
In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:
An individual engaged in prior protected activity;
The employer took a materially adverse action; and
Retaliation caused the employer’s action.
3. What type of EEO activity by an applicant or employee is protected from retaliation?
Generally, “protected activity” is either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.
4. What does it mean to “participate in an EEO process”?
An employer must not retaliate against an individual for “participating” in an EEO process. This means that an employer cannot punish an applicant or employee for filing an EEO complaint, serving as a witness, or participating in any other way in an EEO matter, even if the underlying discrimination allegation is unsuccessful or untimely. EEOC’s view is that this extends to participation in an employer’s internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC.
Participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred. This does not mean that falsehoods or bad faith are without consequence. An employer is free to bring these to light in the EEO matter, where it may rightly affect the outcome. But it is unlawful retaliation for an employer to take matters into its own hands and impose consequences for participating in an EEO matter.
5. What does it mean to “oppose” conduct made unlawful by an EEO law?
Employers must not retaliate against an individual for “opposing” a perceived unlawful EEO practice. This means that an employer must not punish an applicant or employee for communicating opposition to a perceived EEO violation. For example, it is unlawful to retaliate against an applicant or employee for:
complaining or threatening to complain about alleged discrimination against oneself or others;
providing information in an employer’s internal investigation of an EEO matter;
refusing to obey an order reasonably believed to be discriminatory;
advising an employer on EEO compliance;
resisting sexual advances or intervening to protect others;
passive resistance (allowing others to express opposition);
requesting reasonable accommodation for disability or religion;
complaining to management about EEO-related compensation disparities; or
talking to coworkers to gather information or evidence in support of a potential EEO claim.
Opposition can be protected even if it is informal or does not include the words “harassment,” “discrimination,” or other legal terminology. A communication or act is protected opposition as long as the circumstances show that the individual is conveying resistance to a perceived potential EEO violation.
The protection for opposition is limited to those individuals who act with a reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated. In the EEOC’s view, it can be reasonable to complain about behavior that is not yet legally harassment (i.e., even if the mistreatment has not yet become severe or pervasive). It is also reasonable for an employee to believe that conduct violates the EEO laws if the EEOC has adopted that interpretation, even if some courts disagree with the EEOC on the issue.
Opposition also must be conducted in a reasonable manner. For example, threats of violence, or badgering a subordinate employee to give a witness statement, are not protected opposition.
6. Who is protected from retaliation?
The protections against retaliation apply to all employees of any employer, employment agency, or labor organization covered by the EEO laws. This includes applicants, current employees (full-time, part-time, probationary, seasonal, and temporary), and former employees. For example, a supervisor cannot refuse to hire an applicant because of his EEO complaint against a prior employer, or give a false negative job reference to punish a former employee for making an EEO complaint.
These protections apply regardless of an applicant or employee’s citizenship or work authorization status, because the EEO laws protect applicants and employees regardless of citizenship or work authorization. For example, assume an employer suspects a worker is undocumented but does not attempt to verify her authorization to work as required by the immigration laws. If the worker raises an EEO complaint, such as sexual harassment or national origin discrimination, and the employer then threatens to expose the worker’s immigration status as punishment for complaining about EEO violations, the employer would violate the ban on retaliation.
7. Are employees shielded from the consequences of poor performance or misconduct if they raise an internal EEO allegation or file a discrimination claim with an enforcement agency?
No. Neither participation nor opposition give permission to an employee to neglect job duties, violate employer rules, or do anything else that would otherwise result in consequences for poor performance evaluations or misconduct. Even though the anti-retaliation laws are very broad, employers remain free to discipline or terminate employees for poor performance or improper behavior, even if the employee made an EEO complaint. Whether an employer’s action was motivated by legitimate reasons or retaliation will depend on the facts of the case.
If a manager recommends an adverse action in the wake of an employee’s filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.
8. When is an employer action serious enough to be retaliation?
Retaliation includes any employer action that is “materially adverse.” This means any action that might deter a reasonable person from engaging in protected activity.
“Materially adverse” actions include more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, or other actions that can be challenged directly as employment discrimination. Retaliation can be an employer action that is work-related, or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity.
Whether an action is materially adverse depends on the facts and circumstances of the particular case. The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month (even though the pay was later reimbursed) were both “materially adverse actions” that could be challenged as retaliation. The Supreme Court has also said that actionable retaliation includes: the FBI’s refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.
By contrast, a petty slight, minor annoyance, trivial punishment, or any other action that is not likely to dissuade an employee from engaging in protected activity in the circumstances is not “materially adverse.” For example, courts have concluded on the facts of given cases that temporarily transferring an employee from an office to a cubicle was not a materially adverse action and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were not materially adverse.
9. What are some other examples of employer actions that may be actionable as retaliation?
The facts and circumstances of each case determine whether a particular action is retaliatory in that context. For this reason, the same action may be retaliatory in one case but not in another. Depending on the facts, examples of “materially adverse” actions may include:
work-related threats, warnings, or reprimands;
negative or lowered evaluations;
transfers to less prestigious or desirable work or work locations;
making false reports to government authorities or in the media;
filing a civil action;
threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification;
removing supervisory responsibilities;
engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
10. Can an action be materially adverse even if it does not stop the employee from asserting her EEO rights?
Yes. If the employer’s action would be reasonably likely to deter protected activity, it can be challenged as retaliation even if it does not actually stop the employee in a particular case from asserting her EEO rights. An employer can also be liable for retaliation if the materially adverse action does not harm the employee; the extent of the harm only affects the amount of relief the individual might be awarded as compensation.
11. Are employees protected against retaliation when they complain about conduct that affects others but does not affect themselves?
Yes. It is unlawful to take an action against employees because they have complained about discrimination that affects other people. It does not matter whether the person is a witness regarding an EEO complaint brought by others, or whether the person is complaining of conduct that directly affects himself.
12. Is it unlawful for an employer to retaliate against someone by taking action against a family member or close friend?
Yes. If an employer takes an action against someone else, such as a family member or close friend, in order to retaliate against an employee, both individuals would have a legal claim against the employer.
13. Do the EEO laws or other statutes protect employee communications about pay?
Yes. Taking adverse action for discussing compensation may implicate a number of different federal laws, whether the action is pursuant to a so-called “pay secrecy” policy or is simply discipline of an employee in an individual case.
Under EEOC-enforced laws, when an employee communicates to management or coworkers to complain or ask about compensation, or otherwise discusses rates of pay, the communication may constitute protected opposition under the EEO laws, making employer retaliation actionable based upon the facts of a given case. Moreover, talking to coworkers to gather information or evidence in support of a potential EEO claim is protected opposition, provided the manner of opposition is reasonable.
In addition, there are also other federal protections for discussions related to compensation. For example, under Executive Order (E.O.) 11246, as amended by E.O. 13665 (Apr. 8, 2014), enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discharging or otherwise discriminating in any way against employees or applicants who inquire about, discuss, or disclose their compensation or that of other employees or applicants. See https://www.dol.gov/ofccp/. Moreover, the National Labor Relations Act protects non-supervisory employees who are covered by that law from employer retaliation when they discuss their wages or working conditions with their colleagues as part of a concerted activity, even if there is no union or other formal organization involved in the effort. See https://www.nlrb.gov/.
14. Who must prove retaliation?
In order for the employee to prevail in demonstrating a violation, the evidence must show that it is more likely than not that retaliation has occurred. It is not the employer’s burden to disprove the claim.
15. What is the legal standard for proving that retaliation caused a materially adverse action?
There are different causation standards for proving retaliation, depending on the type of claim and the employer.
For retaliation claims against private sector employers and state or local government employers, the Supreme Court has ruled that the causation standard requires that “but for” a retaliatory motive, the employer would not have taken the adverse action. “But for” causation means, even if there are multiple causes, the materially adverse action would not have occurred without retaliation.
For Title VII and ADEA retaliation claims against federal government employers, due to different statutory wording, the Commission has held that the “motivating factor” causation standard applies. The “motivating factor” standard can be met even if the employer would have taken the same action absent a retaliatory motive.
16. What types of evidence may support a claim of retaliation?
In some cases, the employer’s own statements may acknowledge or betray its intention to deter an applicant or employee from engaging in protected activity. However, in many cases, there are different pieces of evidence, either alone or together, that may support an inference that retaliation caused a materially adverse action. Examples include:
suspiciously close timing between the EEO activity and the materially adverse action;
verbal or written statements demonstrating a retaliatory motive, comparative evidence (e.g., the individual was disciplined for an infraction that regularly goes undisciplined in that workplace, or that another employee who did not engage in EEO activity committed and was not disciplined as severely);
demonstrated falsity of the employer’s proffered reason for the adverse action; or
any other pieces of evidence which, viewed alone or in combination with other facts, may support an inference of retaliatory intent.
17. What if the employer claims its challenged action was not motivated by retaliation?
In many cases, an employer will present a non-retaliatory reason for the challenged action. The employer may assert that it acted for a legitimate and unrelated reason such as poor job performance, misconduct, or the individual’s lack of qualifications for the job. An employee may respond to these assertions by providing evidence that the employer’s explanation is actually a pretext for retaliation. If an employer’s explanation is shown to be false, a factfinder may infer retaliation.
18. What are examples of evidence that may support the employer’s assertion that it was not motivated by retaliation?
Even if protected activity and a materially adverse action occurred, evidence of any of the following facts, alone or in combination, may undermine a claimant’s ability to prove it was caused by retaliation. For example:
The employer was not, in fact, aware of the protected activity.
There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as:
inadequate qualifications for position sought;
qualifications, application, or interview performance inferior to the selectee;
negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual);
misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
reduction in force or other downsizing.
Similarly-situated applicants or employees who did not engage in protected activity were similarly treated.
Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive.
19. What is “interference” with disability rights under the ADA?
The ADA prohibits not only retaliation but also “interference” with statutory rights. Interference is broader than retaliation. Under the ADA’s interference provision, it is unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights. Some employer acts may be both retaliation and interference, or may overlap with unlawful denial of accommodation. Examples of interference include:
coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
threatening an employee with loss of employment or other adverse treatment if he does not “voluntarily” submit to a medical examination or inquiry that is otherwise prohibited under the statute;
issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
interfering with a former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.
A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.
20. What remedies are available if retaliation is found?
There is a range of relief available in a retaliation case:
Preliminary relief. The EEOC has the authority to sue for temporary or preliminary relief while completing its processing of a retaliation charge. This asks the court to stop retaliation before it occurs or continues.
Compensatory and punitive damages. Money damages are paid to compensate the victim and to punish the employer for retaliation. However, punitive damages are only available against private employers, not against the government.
Other Relief. Under all the statutes enforced by the EEOC, relief may also include equitable relief such as back pay, front pay, or reinstatement into a job. The Commission also seeks changes in employer policies and procedures, managerial training, reporting to the Commission, and other measures designed to prevent violations and promote future compliance with the law.
21. Did the Commission obtain public input before issuing the Enforcement Guidance on Retaliation and Related Issues?
Yes. The Commission published a proposed draft of the guidance for public input on January 21, 2016, as a means to gather stakeholder feedback. The Commission’s final approved guidance takes into account the feedback received on the draft from approximately 60 organizations and individuals representing a wide range of viewpoints. In preparing the final guidance, the Commission considered all submissions, as well as the stakeholder views expressed at the June 17, 2015 Commission Meeting held on this topic.
22. Are there promising practices that may be implemented to reduce the incidence of retaliation?
Although each workplace is different, there are many different types of promising policy, training, and organizational changes that employers may wish to consider to minimize the likelihood of retaliation violations. Some promising practices include:
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do.
Employers should consider training all managers, supervisors, and employees on the employer’s written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.
Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation.
Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.