By Christopher W. Kelleher

Stock Image:The EEOC recently released its Proposed Enforcement Guidance on Retaliation, which is not law, but will shape how the agency investigates retaliation charges going forward.  The report, which replaces the 1998 version, offers a look into the EEOC’s expansive view of its jurisdiction.

While the EEOC emphasizes that charges of retaliation “essentially doubled” between FY 1998 and 2014, the report fails to mention that according to the EEOC’s own statistics, FY 2014 saw the lowest percentage (2.9%) of “reasonable cause” determinations in that same period.

An employee alleging retaliation must prove that he or she engaged in protected activity, that is, participated in an EEO activity or opposed an unlawful employment practice. The employer must then take an “adverse action” against the individual, who must establish a causal connection between the protected activity and the adverse action.

According to the EEOC, protection for participating in an EEO activity applies even if the underlying charge has no merit, was not timely filed, or lacked any reasonable basis. This protection extends to internal complaints as well. This new emphasis makes it more difficult to discipline employees for legitimate reasons. For instance, the EEOC’s Proposed Guidance expressly disagrees with a recent Seventh Circuit opinion holding that an employer lawfully terminated an employee for shouting during mediation, “you can take your proposal and shove it up you’re a__ and fire me and I’ll see you in court.” Benes v. A.B. Data, Ltd., 724 F.3d 752, 753 (7th Cir. 2013).

The opposition clause, on the other hand, requires some degree of reasonableness, but even advising an employer of intent to file a charge or threatening to complain in broad or ambiguous terms insulates an employee from discipline, according to the EEOC.

Although many district courts disagree, the EEOC says that an “adverse action” can include warnings, reprimands, and even actions outside of work that have “no tangible effect on employment” as long as it might well dissuade a reasonable person from engaging in protected activity. And while the Supreme Court requires “but for” causation to prove Title VII retaliation claims, the agency interprets this concept to mean that charging parties may establish causation by offering a “convincing mosaic” of circumstantial evidence, including any “bits and pieces from which an inference of retaliatory intent might be drawn.”

The report offers several “best practices” to avoid retaliation charges, which include maintaining written anti-retaliation policies, offering trainings, and reviewing consequential employment actions. Employers who want to preserve the ability to discipline employees should maintain vigorous complaint investigation policies and consistently apply discipline procedures using clearly defined policies.

The EEOC is accepting public input at until February 24, 2016.

If you have questions regarding these proposed regulations, please contact the author, or your Seyfarth attorney.