Labor Talk Blog: Workplace Retaliation

September 27, 2016
Firm Publication

The Equal Employment Opportunity Commission (EEOC) recently issued updated guidance on workplace retaliation issues. This is the first update to the workplace retaliation policy since 1998 for what has become the most commonly reported complaint among employees in all sectors of employment in the U.S. As employers know, retaliation is taking a materially adverse action against an applicant or employee because that person engaged, or may engage, in asserting his/her rights under any of the statutes enforced by the EEOC which include: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act (ADEA); Title V of the Americans with Disabilities Act (ADA); Section 501 of the Rehabilitation Act (Section 501); the Equal Pay Act (EPA); and Title II of the Genetic Information Nondiscrimination Act (GINA). Those who can allege retaliation include job applicants, and current or former employees.

While the new EEOC guidance does not alter the three basic elements of a retaliation claim, the new guidance does interpret those elements more broadly. The elements are:

  1. the individual engaged in protected activity (participating in an equal employment opportunity (EEO) process or opposing discrimination);
  2. the individual is subject to a materially adverse action by the employer; and
  3. the individual can show a causal connection between the protected activity and the materially adverse action.

According to the new guidance, a materially adverse action can be any action that might deter a reasonable person from engaging in protected activity. While most employers think of a materially adverse action as discrete acts that impact pay (denial of promotion, failure to hire, denial of benefits, demotion, suspension or discharge), the U.S. Supreme Court has also held that other actions designed to silence protected activity can be actionable: the filing of false criminal charges against a former employee, changing the work schedule of a parent who has caretaking responsibilities for school-age children, or excluding an employee from a weekly training lunch that contributes to professional advancement. The EEOC goes further in its guidance and notes that materially adverse actions can include disparaging an individual to the media, threatening reassignment, removal of supervisory responsibilities, making threats of deportation, taking a materially adverse action against a close family member, and terminating a union grievance process. Minor annoyances and trivial punishments that are not enough to dissuade an employee from engaging in protected activity do not constitute “materially adverse” action.

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