In its newly released “Enforcement Guidance on Retaliation and Related Issues” (August 2016) (the Guide) the Equal Employment Opportunity Commission (EEOC) provides a much needed update to its previous interpretations of the law of retaliation. The newly released Guide replaces the EEOC’s former Compliance Manual Section 8: Retaliation which was last issued in 1998. Specifically, the Guide sets out the EEOC’s updated positions on various issues relating to claims of retaliation including what it means to “oppose” conduct made unlawful by Equal Employment Opportunity laws: A particularly complex area of analysis for most employers.
Laws enforced by the EEOC (Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA)) (EEO laws) prohibit employers from taking materially adverse employment actions (retaliating) against an employee or applicant because he or she asserts rights protected by EEO laws. Asserting rights under any of the various EEO laws is considered protected activity. Specifically, employees and applicants are protected from retaliatory adverse employment actions when asserting rights under one of two basic scenarios: 1) Filing, serving as a witness, or participating in any way in an EEOC matter; or 2) when an employee or applicant reasonably opposes any conduct made unlawful by an EEO law.
In my experience, most employers run into difficulties when they attempt to deal with workplace scenarios involving protections afforded to those who “oppose” conduct made unlawful. The same question seems to crop up again and again: “What does it mean to oppose conduct made unlawful under…insert your favorite EEO law here?” The EEOC’s newly released Guide offers an updated and helpful perspective on this specific issue.
In the lexicon of the EEOC “opposition” equals “communication.” Any opposition, specifically or impliedly communicated to an employer, triggers the employee or applicant’s right to protected status. In other words, one of the key components of opposing unlawful conduct is communicating that opposition to the employer. Highlighting the importance of this connection the Guide cites Crawford v. Metropolitan Government of Nashville and Davidson County, as exemplifying the expansive nature of the opposition clause under Title VII. The Guide further expounds on what, under EEOC auspices, constitutes opposition conduct, the manner of a reasonable opposition, and the type of opposition conduct the EEOC deems unreasonable.
The following are a few specific examples of acceptable opposition conduct taken directly out of the Guide:
- “Complaining or threatening to complain about alleged discrimination against oneself or others”
- “Refusing to obey an order reasonably believed to be discriminatory”
- “Advising an employer on EEO compliance”
- “Resisting sexual advances or intervening to protect others”
- “Passive resistance”
These and other examples provided in the Guide make clear the EEOC’s intent to cast a wide net when it comes to protected opposition conduct. Nonetheless, recognizing not all opposition conduct warrants protection, the EEOC tempers its broad position by enumerating specific conduct it considers unacceptable and makes clear that “whether the manner of opposition is unreasonable is a context- and fact-specific inquiry.” The following are a few specific examples of opposition conduct considered by the EEOC to be unreasonable:
- “Making an overwhelming number of patently specious complaints”
- “Committing or threatening violence to life or property”
Finding a positional balance between the fact specific nature of protected conduct, the inherent differences in managing a modern workforce, and the need to reduce overall instances of retaliatory conduct, the Guide also offers updated training tips. The following are a few tips taken directly from the Guide:
- “Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.”
- “Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace….”
- “Emphasize that those accused of EEO violations, and in particular managers and supervisors, should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.”
- “Do not limit training to those who work in offices. Provide EEO compliance and anti-retaliation training for those working in a range of workplace settings…employees and supervisors in  manufacturing and service industries, manual laborers, and farm workers.”
- “Consider overall efforts to encourage a respectful workplace, which some social scientists have suggested may help curb retaliatory behavior.”
The last training tip mentioned above on encouraging a more respectful workplace falls in line with earlier EEOC recommendations – outlined in its June 2016 Select Task Force Report on the Study of Harassment in the Workplace – suggesting that new and different approaches, including business etiquette training, should be explored if organizations are to become truly effective at preventing wrongful conduct (i.e., harassment, discrimination, and retaliation) in the workplace.
To learn more about SAFFIRE LEGAL’s Business Etiquette Training visit our website.
To learn more about preventing harassment, discrimination and retaliation in the workplace mark your calendar for SAFFIRE LEGAL’s November 16, 2016 Webinar on Training to Prevent Harassment, Discrimination and Retaliation: A New Dynamic. 555 U.S. 271, 276-80 (2009)