According to the Equal Employment Opportunity Commission (EEOC), retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination. Retaliation was asserted in nearly 45 percent of all charges filed with the EEOC in 2015. With this trend, it is not surprising that the EEOC decided to develop and announce updated guidelines for employers. This announcement took place on August 29, 2016, as the EEOC issued its final 76-page Enforcement Guidance on Retaliation and Related Issues and Small Business Fact Sheet, the first retaliation-related guidance provided by the EEOC since 1998.
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and comparable state and local discrimination laws prohibit retaliation against an applicant or employee who makes a complaint or files a charge or lawsuit alleging discrimination. Furthermore, it is also against the law to retaliate against employees who participate in a discrimination investigation or who support a co-worker who makes allegations of discrimination. Protections against retaliation are also built into the Fair Labor Standards Act, the National Labor Relations Act, the Genetic Information Nondiscrimination Act, state workers compensation laws, and state “whistleblower”laws.
Unlawful retaliation can take many forms, including demotion, denial of a raise, the refusal of a promotion, or exclusion from opportunities offered to other employees. Employers should keep in mind that it is unlawful even if the underlying claim is not determined to be valid. As long as a charge, complaint, or legal action is made in good faith, the complaining employee is protected by prohibitions on retaliation.
The EEOC's latest Guidance states that the preconditions to a retaliation claim include:
- protected activity being either “participation in an EEO process” or “opposition to discrimination”;
- materially adverse action taken by the employer; and
- a requisite level of causal connection between the protected activity and materially adverse action.
The EEOC considers these three elements to be fluid concepts, to be read and enforced expansively.
While the Guidance acknowledges that the Supreme Court has held that the standard for proof of retaliation under Title VII is that “but for” the retaliatory motive, the employer would not have taken the adverse action. The Guidance introduces the “motivating factor” standard for federal sector Title VII and ADEA retaliation cases, prohibiting retaliation if it is a mere motivating factor behind an adverse action. The Guidance provides that suspicious timing, incriminating oral or written statements, evidence of how comparable individuals were treated differently, and inconsistent or shifting explanations of the adverse action all can support a finding of retaliation, while the employer's ignorance of the protected activity or having a legitimate, non-discriminatory reason for the adverse action may support a finding that no unlawful retaliation has occurred.
While some may call into question the amount of clarity provided by the Guidance, the bottom line is that no matter how many pieces of evidence are combined by the plaintiff, causation cannot be proven if the evidence shows that the challenged adverse action would have occurred anyway because of legitimate non-retaliatory reason.
California employers concerned about the scrutiny of the EEOC must be vigilant to document or otherwise be able to prove that all aspects of performance management are conducted without regard to whether an applicant or employee may be about to participate in an EEO process or oppose discrimination. Understanding the laws that protect employees with complaints is a good starting point when trying to prevent retaliation claims.
Should you have questions about retaliation or wrongful termination, don't hesitate to contact leading California employment lawyers from Kingsley & Kingsley. To discuss your situation call us toll-free at (888) 500-8469 or click here to contact us regarding your case.