Employment Practices

Workplace Retaliation Revisited

The EEOC has revised its guidelines concerning worker retaliation, but opinions on the changes are mixed.
By: | April 4, 2016

Since the Equal Employment Opportunity Commission updated enforcement guidance addressing retaliation in 1998, the percentage of retaliation charges has roughly doubled. Retaliation claims were involved in nearly 43 percent of all private sector charges filed in 2014.

In response, the federal agency recently updated its guidance on workplace retaliation, but the effort is not universally supported. Some say the new guidelines simply reflect a codification of prior court decisions while others believe the EEOC is broadening the definition of protected activity.

“By providing this guidance on a much broader basis, which isn’t actually covered by the law, [the EEOC] is setting itself up to waste its own resources as well as those of employers,” said Ben Huggett, shareholder at Littler Mendelson law firm in Philadelphia.

Ben Huggett, shareholder, Littler Mendelson

Ben Huggett, shareholder, Littler Mendelson

Among his chief concerns is that the update ignores the “but for” causation standard established by the U.S. Supreme Court in June 2013’s “University of Texas Southwestern Medical Center v. Nassar” case.

Consider an employee who complains about his supervisor making a racial comment. His supervisor becomes angry and later terminates him for clearly violating an important safely rule.

Based on the “but for” causation, this employee must prove that his supervisor would not have fired him if he didn’t file that complaint (i.e., but for the employee complaining about racial discrimination, he would not have been terminated.)

However, under the EEOC’s new guidance, it will be employers that must defend the dismissal even though it was directly related to a safety violation.

“Suddenly, you’ve got to do more interviews, perhaps submit more information to EEOC investigators because they’re following this broad guidance to investigate everything,” said Huggett.

Strategies for Mitigation

According to Littler’s Workplace Policy Institute, there needs to be a “safe harbor” for employers that support an anti-retaliation culture: “The [EEOC] should likewise adopt best practices for its investigators, which include not penalizing employers who have a ‘speak up’ organizational culture and a procedure in place to ensure that any employment-status changes are undertaken for legitimate, non-retaliatory, non-discriminatory business reasons.”

“Suddenly, you’ve got to do more interviews, perhaps submit more information to EEOC investigators … .” — Ben Huggett, shareholder, Littler Mendelson

To prevent employee complaints from escalating into retaliation claims, companies can form an employee committee to resolve worker complaints on a confidential and neutral basis, said Mellissa Schafer, partner at Hinshaw & Culbertson in Los Angeles.

She suggesed that employers avoid making changes to an employee’s schedule or employment status immediately after a claim is filed. She also noted that sometimes, strict company policies may prompt claims.

Mellissa Schafer, partner, Hinshaw & Culbertson

Mellissa Schafer, partner, Hinshaw & Culbertson

Schafer pointed to a current retaliation case involving an employee at U.S. Steel Corp. In Feb. 2014, the employee, who was wearing a hard hat, bumped his head on a low hanging beam.

Four days later, his shoulder was stiff and his union representative reported the incident.

Since the company’s policy required employees to immediately report injuries, the employee was suspended for five days without pay for failing to comply with the policy and another five days without pay for failing to report his injury.

He filed an OSHA complaint, alleging retaliation for reporting a workplace injury.

“The EEOC is all over this issue because there are employers who are doing this,” Schafer said.

Rick Ross, partner at Fredrikson & Byron law firm in Minneapolis, said all companies, including U.S. Steel, need to apply rules consistently. However, he said, the new retaliation guidelines aren’t “a big deal,” and that they simply categorize existing case law. &

Carol Patton is a long-time, versatile journalist. She can be reached at [email protected].

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