Bar News - April 20, 2016
Labor & Employment Law: EEOC Publishes ‘Best Practices’ for Avoiding Retaliation Claims
By: Julie Moore and Marcie Vaughan
Retaliation claims have become ubiquitous. According to national statistics from the Equal Employment Opportunity Commission (EEOC), retaliation accounted for 44.5 percent of all charges filed in 2015. The statistics are even more jarring in New Hampshire, with the NH Commission for Human Rights (HRC) reporting that 115 of the 211 charges filed in 2015 involved retaliation – that’s a whopping 54 percent.
If those statistics failed to grab your attention, the EEOC’s new “Proposed Enforcement Guidance on Retaliation and Related Issues,” released for public input on Jan. 21, 2016, might. The Proposed Guidance emphasizes the reality that, even when a discrimination claim lacks merit, or an employer’s prompt remedial action shields it from liability exposure in a sexual harassment claim, the employer may still be liable for retaliation. The Proposed Guidance sets forth the EEOC’s position on key legal issues, including the causation standard, and provides “best practices” to help employers avoid retaliation complaints.
Workplace retaliation consists of: 1) protected activity, either “opposition” to employment discrimination or “participation” in EEO activity, of which the employer was aware; 2) adverse action; and 3) a causal connection between the two.
These elements are well illustrated in a case the HRC decided in May 2015. On Jan. 12, 2011, the complaining party, a nurse practitioner (NP), made an internal complaint alleging that a physician had sexually harassed a co-worker (protected activity). The co-worker denied that the harassment occurred. On March 11, 2011, the NP was demoted and had her pay cut and, eight months later, she was terminated as part of a reduction in force (three adverse actions). No investigation took place into the complaints, causing the HRC to say that an employer’s “failing to follow [its written policies and] procedures and investigate complaints of discrimination... can give employees the impression that their concerns are not important and that they are not being protected.”
Here, the HRC issued a finding of “no probable cause” on the sexual harassment complaint, while finding probable cause on retaliation. The timing of events was closely scrutinized. The demotion occurred within eight weeks of the complaint, and the termination within the year, resulting in the HRC finding that the “close proximity” between the complaint and the adverse action gave rise to an inference of illegal motivation. This inference was buttressed when the employer stated that the NP was selected for layoff because she failed to meet her patient quota, which was inconsistent with credible evidence that the employer never gave her a quota. The employer could provide no documentation as to any minimum established targets.
The HRC’s reliance on temporal proximity and evidence that the employer’s proffered legitimate reason for the adverse action was false corresponds with the EEOC’s interpretation of “but-for” causation. The Proposed Guidance explains that retaliation requires proof that the employer took adverse action because the complaining party engaged in protected activity. Significantly, for the first time, the EEOC provides a list of the types of evidence that help establish causation:
- Suspicious timing
- Verbal or written statements
- Comparative evidence that a similarly-situated employee was treated differently
- Falsity of the employer’s proffered reason for the adverse action
The Proposed Guidance notes that an inference of retaliatory intent might also be drawn from other “bits and pieces,” clearly signaling that the above list is non-exhaustive.
“Best practices” in developing an effective anti-retaliation compliance program, set forth in the Proposed Guidance, should help employers avoid retaliation. Specifically:
- Maintain written policies addressing retaliation, including a definition, examples, proactive steps for avoidance, an internal reporting mechanism, and a clear statement that engaging in retaliation subjects employees to discipline, up to termination. Policies must be properly communicated and disseminated.
- Conduct training for management and employees on the anti-retaliation policy and related issues.
- Provide advice on retaliation and individualized support for management and employees as part of the response to an EEO complaint; counsel should be given to accused managers and supervisors on how to handle their personal feelings while continuing to actively manage.
- Follow up proactively with parties and witnesses during an EEO investigation.
- Monitor “employment actions of consequence” for EEO compliance by ensuring that corrective or other adverse action taken is for legitimate non-discriminatory, non-retaliatory reasons. Beware of creating the appearance of retaliation.
The HRC, similarly, emphasized in the above decision that employers should apply “best practices” to prevent retaliation, including adherence to policies and conducting prompt, thorough and neutral investigations into complaints.
The EEOC concludes the Proposed Guidance with some advice to employers: “Consider overall efforts to encourage workplace civility, which some social scientists have suggested may help curb retaliatory behavior.” The US Supreme Court long ago stated that Title VII is not a “general civility code for the American workplace,” but the EEOC seems to be moving in that direction nonetheless. The impact of the Proposed Guidance on the workplace and disposition of claims remains to be seen, but employers and counsel should heed the clear guidance.
Julie Moore is president of Employment Practices Group in Wellesley, Mass. She’s been practicing in New Hampshire since 1992 and is past chair of the Bar’s Labor & Employment Section. Portsmouth-based Marcie Vaughan works with EPG and specializes in employment law.