Hunton Employment & Labor Perspectives

On January 21, 2016, the EEOC announced that it will seek public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws.  The EEOC issued its last guidance update on the subject of retaliation in 1998.  The EEOC’s 73 page draft guidance is available for review here and the 30-day input period ends on February 24, 2016.

Among the notable changes for employers, the proposed guidance expands what can constitute a causal connection between an adverse employment action and prior protected activity, embracing what one appellate court has called a “convincing mosaic” of circumstantial evidence that would support the inference of retaliatory intent.

The guidance also expands the definition of protected activity to include situations where an employee subjectively believes that the employer’s conduct violates equal employment opportunity laws. Although the guidance notes that the subjective belief must be based on reasonable good faith, it suggests that protected activity will be found unless the complaint is “patently specious.”

In addition, the guidance expands the definition of adverse employment action to include actions that extend beyond the workplace setting and which may have no tangible effect on employment, if such acts would be reasonably likely to deter protected activity, for example, if an adverse action is taken against a third party who is closely related to or associated with the complaining employee.

What the new proposed changes aim to do is advance the EEOC’s recent efforts to broaden the definitions for elements underlying a retaliation cause of action, in an attempt to combat what the Commission believes to be a persistent and widespread problem in the nation’s workplaces. According to the EEOC’s press release, the percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with the EEOC.

If adopted, the proposed guidance heralds a considerable easing of the burdens on an employee for establishing a prima facie case of retaliation.