By Daniel L. Glynn

            On August 25, 2015, the Equal Employment Opportunity Commission, the entity responsible for the administration and enforcement of civil rights laws in the workplace, issued its Enforcement Guidance on Retaliation and Related Issues (which is available on the EEOC’s website).  This is the first update of the EEOC’s guidance on these subjects since 1998.  While EEOC’s guidance statements such as this do not carry the force of law in the same manner as judicial decisions or even agency rules, they are nonetheless important policy statements of the EEOC that any human resource officer should be mindful of in their evaluation of potential unlawful retaliation claims by employees.  The EEOC’s recent issuance of this particular Enforcement Guidance is worthy of note given that retaliation claims have increased nearly one hundred fold since the EEOC’s last publication on the subject in 1998 and retaliation claims account for approximately forty-five percent of all claims that are currently presented before the EEOC.

A.        Unlawful Retaliation.

            A claim for retaliation occurs when an employer takes a “materially adverse action” as a result of an individual’s engagement in a “protected activity”.  Accordingly, the Enforcement Guidance addresses all three necessary elements of a retaliation claim by giving further explanation of (1) what constitutes a protected activity, (2) what constitutes a materially adverse action, and (3) what constitutes the requisite casual connection between the protected activity and the materially adverse action.

B.        Protected Activities.

            First, the Enforcement Guidance recognizes that a protected activity includes both “participating” in the presentment of a claim for discrimination as well as “opposing” a discriminatory practice.  With regard to “participation,” an individual is protected from retaliation “for having made a charge, testified, assisted, or participated in any manner in an investigation, administrative proceeding or lawsuit alleging discrimination.”  Significantly, in contrast to several Circuit Court decisions, the EEOC officially takes the position in the Enforcement Guidance that “participation” protections apply “regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct.” 

In addition, although some courts have concluded that the “participation” protections apply only to administrative charges or lawsuits, the EEOC sets forth in the Guidance Enforcement that these protections apply equally to internal complaint and investigative processes.        

            However, with regard to the prohibition against retaliatory conduct against an individual who engages in an activity which opposes a discriminatory practice, the manner in which the employee opposes a discriminatory practice must be (1) reasonable and (2) based on a reasonably good faith belief that the discriminatory conduct occurred.  Thus, the EEOC identifies “reasonable opposition” to include complaints of discrimination made to individuals other than the employer (to include law enforcement, union officials, attorneys or even coworkers), public opposition (to include picketing and public protests) and advising an employer of an intention to file a complaint. As to the requirement that the “opposition” be based on a reasonably good faith belief that a discriminatory practice occurred, the EEOC notes that the mere fact that the challenged practice is found to be lawful does not invalidate a claim for retaliation.  As an example of “non-protected opposition”, the Enforcement Guidance identifies a hypothetical where an employee makes a complaint of sex discrimination as a cause for her being denied a promotion, but the position required a professional license which the employee did not possess.

C.        Materially Adverse Action.

            Noting the 2006 United States Supreme Court decision, Burlington Northern & Santa Fe Railroad Co v. White, the EEOC advises the reader that a broad range of actions can be considered a material adverse action.  A materially adverse action is any action that “might deter a reasonable employee from complaining about discrimination” even if the complained action did not, in fact, deter the individual from asserting a claim.  Accordingly, a material adverse action encompasses more than the traditionally understood acts of demotion, suspension, refusal to promote, or termination. 

What constitutes an adverse action, although objective in nature, is dependent on the particular circumstance.  As the Enforcement Guidance states “Context matters. An act that would be immaterial in some situations is material in others.”  Thus, “a materially adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside of work.…”  As examples, the EEOC notes adverse action could include exclusion from team lunches, workplace surveillance, threats to report immigration status, reassignment to unfavorable locations, and abusive scheduling practices.  In addition, a material adverse action need not be directed at the complaining individual himself, but can also be actions which are directed at individuals who are “closely related to or associated with the complaining employee.”

D.        Causation.

            As a final matter, the Enforcement Guidance provides further explanation of the necessary demonstration of a casual connection between the materially adverse action and the individual’s protected activity.  Accordingly, with regard to private sector employers, a retaliation claim is demonstrated when it is established that “but for” the retaliatory motive, the employer would not have taken the adverse action. 

Noteworthy, however, is that this “but for” causation does not mean that retaliation has to be the “sole cause” of the action.  Thus, a claim for retaliation can still be asserted even if the alleged discriminatory action combines with other non-retaliatory actions if those other non-retaliatory actions would not have resulted in an adverse action on their own.  Accordingly, the EEOC identifies a number of examples of conduct by an employer which would support the finding of retaliation including (1) suspicious timing between the adverse action and the protected action, (2) comparison of the employer’s action with the manner in which the employer previously addressed similar situations, (3) inconsistent or shifting explanations by the employer for the reasons for the action(s) taken, and (4) evidence that the employer’s explanation was pre-textual.

E.        Promising Practices.

In addition to providing guidance as to how the EEOC intends to interpret and enforce retaliation claims, the Enforcement Guidance also offers “promising policy, training, and organizational changes that employers may wish to consider implementing in an effort to minimize the likelihood of retaliation violations.”  The EEOC is careful to note that the implementation of these practices will not serve to insulate an employer from liability for retaliation claims.

The practices recommended by the EEOC include the publication of a “written, plain language anti-retaliation policy” which should include (1) examples of retaliation, (2) proactive steps for avoiding actual or perceived retaliation, (3) a reporting mechanism for employees concerned about retaliation, and (4) a clear statement that retaliatory conduct can be subject to discipline.  The EEOC also recommends training supervisors on anti-retaliation policy and procedures. 

Finally, as part of any claim for employment discrimination, an employer is encouraged to (1) provide information to all individuals involved of the employer’s anti-retaliation policy, (2) engage in proactive follow up during the pendency of any investigation if there are any perceived feelings of retaliation, and (3) critically review the investigative process for compliance with EEOC directives upon the completion of the investigation.


It is also worth noting that in addition to the Enforcement Guidance, the EEOC also issued two shorter, more user friendly explanations of the EEOC’s policy positions on these matters.  These documents entitled “The Questions and Answers: Enforcement Guidance on Retaliation and Related Issues” and “The Small Business Fact Sheet: Retaliation and Related Issues” can also be found on the EEOC’s website.

Although many of the EEOC suggested practices are of the sort that should already be in existence in your company, the “promising practices” provided by the EEOC does provide yet another checklist for individuals within human resource departments to double check against their existing policies and procedures.