Retaliation is the most frequent Equal Employment Opportunity Commission (EEOC) charge. The EEOC’s fiscal year is October 1, 2015 to September 30, 2016. The latest numbers will be available in six to eight weeks.
It is a safe bet that it will top the charts again this year. Retaliation has been the leading charge since 2009. It tied race discrimination in 2008 and has increased its lead ever since. The EEOC has released Enforcement Guidance on Retaliation and Related Issues which is likely to increase these charges.
Retaliation is defined as when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces. The EEOC’s anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response.
The Guidance outlines the three elements required of a retaliation claim:
The Guidance broadly defines each of these elements. The employee does not need to be the person making the complaint or opposing the employer’s conduct. The employee may have assisted, testified or participated in the investigation. The complaint needs to be a reasonable, good faith belief that the allegations are, or could become unlawful conduct.
The Guidance expands the definition of materially adverse action to include any action that might deter a reasonable person from engaging in protected activity. This may include non-work related actions and action against a third party who is closely linked to the complaining employee. The third party may claim retaliation regardless of whether he engaged in the protected activity or has ever been employed by the employer.
Unlawful retaliation is established when a causal connection is established between a materially adverse action and the individual’s protected activity. An employer has two lines of defense; an unawareness of the protected activity and a legitimate unrelated reason such as poor performance for the adverse action.