EEOC guidance on retaliation to aid employment litigators.

EEOC guidance on retaliation to aid employment litigators

Amid a rising tide of retaliatory job bias claims and last year's Robinson v. Shell Oil Co. Supreme Court decision, the EEOC has issued guidelines to help litigators interpret statutes involving retaliation and employment discrimination.

The manual describes what constitutes protected activity, what "adverse actions" by employers can be challenged as retaliatory, and what evidence is needed to prove those actions were taken because of protected activity. (EEOC, EEOC Compliance Manual, No. 915.003 (May 20, 1998); available at http://www.eeoc.gov/docs/retal.txt or by writing to EEOC, Office of Communications and Legislative Affairs, 1801 L St. N.W., Washington, DC 20507.)

The EEOC said the number of charges alleging retaliation has more than doubled in the past several years. In 1991, the commission received more than 7,900 claims, and, in 1997, the number jumped to more than 18,100.

The guidelines do not have the force of law, but litigators "take them very seriously," said Lawrence Markowitz, a York, Pennsylvania, employment law attorney. Alan Fuchsberg, a New York City attorney who handles job discrimination cases, agreed. "I think it's very important what the EEOC says. It has become an ambitious agency. Its guidelines mean something."

The guidelines are designed to provide instructions for lawyers investigating and analyzing claims of retaliation under EEOC-enforced statutes, which include Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Equal Pay Act.

The EEOC emphasized that protected activity includes opposing discrimination in the workplace as well as participating in the complaint process. For example, employees who believe they are the target of discriminatory practices--as well as friends and coworkers who may have been unlawfully deterred from testifying on the employee's behalf--can challenge retaliatory acts by employers.

The agency also noted that the underlying discrimination claim does not have to be reasonable or valid to make a case for employer retaliation. To require otherwise, "would chill the rights of all individuals protected by the antidiscrimination statutes," the guidance said.

In defining what constitutes adverse actions by employers, the EEOC included negative job references. This guidance follows the recent Robinson case (519 U.S. 337 (1997)), where the Supreme Court found that federal civil rights laws protect former--not just current--workers from retaliation by employers who have been charged with discrimination. (Discrimination provision expanded to cover former workers, TRIAL, May 1997, at 88.)

Other adverse actions include "significant retaliatory treatment that is reasonably likely to deter protected activity." The agency said there is no requirement that actions against employees "materially affect the terms, conditions, or privileges of employment." "

This "requirement" has been disputed by the Fourth Circuit in a job discrimination case. (Munday v. Waste Management of North America, 126 E3d 239 (4th Cir. 1997).) There, the court found that an employer's treatment of a female worker who filed a sexual harassment suit did not rise to the level of retaliation because the terms, conditions, or privileges of her employment were not materially affected.

The Ninth Circuit, on the other hand, has found that the degree of harm suffered by an individual goes to the issue of damages, not liability. (Hashimoto v. Dalton, 118 E3d 671,676 (9th Cir. 1997).

In terms of proving a causal connection between protected activity and an employer's adverse action, the EEOC said evidence may be direct--which the agency noted is rarely present--or circumstantial.

"A violation is established... if the respondent fails to produce evidence of a legitimate, nonretaliatory reason for the challenged action, or if the reason advanced by the respondent is a pretext to hide the retaliatory motive."