As we discussed in March, the Equal Employment Opportunity Commission, the agency in charge of enforcing federal employment laws, proposed changes to its retaliation guidelines for the first time in 18 years. Last week, those changes became final.
Retaliation occurs when an employer takes negative action against an employee for exercising his or her legally-protected rights. For example, retaliation would occur if an employer demoted an employee because that employee filed a claim with the EEOC against that employer. According to the EEOC, retaliation is the most frequently asserted basis of discrimination, comprising nearly 45% of the claims that it receives.
The changes to the EEOC’s guidelines expand employee protections. They broadened the scope of what constitutes retaliation, stating that federal employment laws should be given an “expansive definition” and that “great deference” should be given to employee claims of retaliation. The guidelines also make it illegal for an employer to take adverse action against an employee who files a meritless claim with the EEOC against his or her employer.
The guidelines also note that circumstantial evidence can be used to prove employer retaliation. The employer does not need to expressly state that an employee has been disciplined for lodging a complaint with the EEOC. Instead, a “convincing mosaic” of circumstantial evidence that could lead someone to believe that there has been retaliation is all the evidence that is necessary. This could make it easier for an employee to make a speculative retaliation claim that has little factual basis.
The guidelines offer some best practices that employers can use to minimize the likelihood that they are accused of retaliation. These include:
- Having written anti-retaliation policies;
- Training employees on ways that they can avoid a claim of retaliation;
- Providing advice and guidance to those employees accused of retaliation;
- Ensuring that proposed employment actions (like firing, demotion, etc.) are based on legitimate, non-retaliatory reasons.