EEOC Proposes Extensive Guidance Measures on Retaliation Issues

In response to the growing number of cases, the Equal Employment Opportunity Commission (EEOC) proposed enforcement guidance on retaliation and related issues in the workplace. The EEOC offered the document to the public for comment and review. A copy of the proposed guidance is available for download and comment on the EEOC website until February 21, 2016.

It’s been 18 years since the EEOC proposed revisions to guidance on retaliation issues. Now the EEOC has offered these changes to the public for comment. The proposed guidance has sparked concerns among employers that fear the expanded view of what can be considered “evidence” may encourage a rise of speculative retaliation claims that lack factual basis.

What’s New with the EEOC Retaliation Guidance?

The current guidance for workplace retaliation regulated by the EEOC requires that an employee present significant evidence for three separate aspects of a case:

• He or she engaged in a protected activity, like reporting harassment or objecting to perceived discrimination
• He or she experienced an adverse employment action, like being terminated
• His or her protected activity caused the adverse employment action

The third factor is often the most challenging aspect to prove. When it comes to EEOC retaliation cases, the employee must prove that the employer not only knew about the protected activity, but also, the adverse employment action took place because the employee engaged in a protected activity. Timing of the adverse action is often key to this determination.

According to an article by The National Law Review, the revision proposes that an employee,

“may discredit the [employer’s] explanation and demonstrate a causal connection between the prior protected activity and the … adverse action by… [establishing] a ‘convincing mosaic’ of circumstantial evidence that would support the inference of [retaliation].”

The revisions proposed fundamentally modify what can constitute a causal connection between an adverse employment action and the prior protected activity.

In an article on Lexology, concerns about the broadening definition of what may be considered as a “protected activity” are addressed. Under the proposed revisions, a protected activity is found “even if the harassment falls far short of ‘severe or pervasive’ harassment, since the entire hostile work environment liability standard is predicated on encouraging employees to report harassment and employers to act on early complaints, before the harassment becomes ‘severe or pervasive’.

Why Did the EEOC Change it’s Workplace Retaliation Guidelines?

Although the EEOC’s guidelines are not binding law, the proposed revisions are meant to assist staff members assisting employees when making a case against a retaliating employer. Such changes may shift the employment law climate on retaliation.

Revisions have not been made to the EEOC’s retaliation guidance since 1998, and in the aftermath of the revisions, retaliation cases have doubled for both private and federal employers. Due to this trend, employers now fear that changes made to guidance measures in retaliation cases could bring about another rise in EEOC retaliation claims.

Have you or someone you know experienced retaliation in the workplace? Then find an experienced employment rights attorney to secure fair treatment on the job. Contact Wenzel Fenton Cabassa, P.A., today for a consultation about your case.

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SOURCES:

New EEOC Retaliation Guidance

EEOC’s Proposed Retaliation “Guidance”

EEOC Seeks Public Input on Proposed Guidance on Retaliation