EMPLOYMENT LAW ALERT – Spring 2016 Issue

RETALIATION CLAIMS:  PROPOSED NEW EEOC GUIDANCE

The EEOC has proposed updated guidance about what may indicate retaliation against an employee.  After a period for public comment this spring, the EEOC will consider revisions to the proposed guidance and then issue a final draft.  The new guidance proposal comes in the wake of an upward trend in the frequency of retaliation charges.  The updated guidance reiterates the requirements for a retaliation claim:

• Employee engagement in protected activity, either by:
  • participation in equal employment opportunity (EEO) activity or
  • opposition to discrimination.
• Adverse action taken by the employer.
• A causal connection between the protected activity and the adverse action.

However, the new guidance takes a more expansive view on what constitutes “participation” and “opposition,” potentially increasing the number of activities that the EEOC considers to involve retaliation.

For example, participation in an EEO process does not have to occur pursuant to a formal EEOC charge or EEOC investigation to be considered protected activity.  An employee likewise does not have to oppose employer conduct to be engaged in protected activity.  The proposed guidance broadens “participation” to include assisting or participating in any manner in an internal investigation or proceeding; making internal complaints to an employer or union; providing witness information; or filing administrative charges or a lawsuit alleging EEO discrimination.  Protection for “participation” also applies regardless whether the underlying discrimination allegations are reasonable.

Nevertheless, employees cannot avoid discipline from their employer simply by raising an internal investigation or filing a complaint.  Employers can still discipline employees for legitimate non-discriminatory and non-retaliatory reasons, even if they have participated in EEO activity.  Employers must, however, be ready to show that the discipline wasn’t simply retaliation for the employee’s participation.

The proposed guidance also broadly interprets what qualifies as “opposition” to discrimination.  Opposition may include situations such as:

• Accompanying a co-worker to the HR office to file an internal complaint;
• Complaining about discrimination against co-workers or intervening to protect others;
• Answering an employer’s questions about potential discrimination, even when the employee did not initiate the complaint;
• Refusing to follow a supervisor’s orders believed to be discriminatory;
• Discussing suspected pay or wage discrimination.

Opposition also encompasses all employees, including HR staff and managers.  Managers do not have to step outside their management role to engage in protected activity.  However, “opposition” must still be acting with a reasonable and good faith belief that the opposed practice is unlawful and must use a manner of opposition that is reasonable.  Under the proposed guidance, complaints to someone other than the employer (i.e., union officials, co-workers, an attorney, police, etc.) may be deemed reasonable “opposition.”  The guidance also notes that calling public attention to alleged discrimination or going outside a chain of command may be “opposition” if done in a reasonable manner.

In addition, recent EEOC positions may factor into what is considered reasonable opposition.  An example given is of an employee complaining to HR of his belief co-workers are harassing him about his sexual orientation.  The guidance considers this complaint to be protected activity under Title VII because the EEOC’s enforcement efforts could lead persons to a reasonable belief that sexual orientation discrimination is actionable as sex discrimination under Title VII.

PRACTICE POINTER:  Employers should be aware that a variety of activities by employees—including management—regarding equal employment opportunity could become the basis for a retaliation claim.  Training and written policies on what may or may not constitute retaliation to prevent adverse actions that could trigger retaliation claims.  An employer who takes or allows adverse action to be taken against an employee should ensure that the adverse action is appropriately supported with consistent enforcement of company rules and documented grounds for discipline.

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RKRB OPENS NEW NASHVILLE OFFICE

Rainey Kizer recently opened its fourth office in downtown Nashville, Tennessee.  Headed primarily by firm member Nathan Shelby, the office is located in the Fifth Third Bank Center, 424 Church Street, Suite 2000.  With this new office, we are poised to better serve our clients with matters in Middle and East Tennessee.

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SAVE THE DATE:  SPRING EMPLOYMENT LAW SEMINAR

Mark your calendars for Wednesday, May 4, when RKRB will present our annual spring employment law seminar, in conjunction with the West Tennessee SHRM chapter.  The event location is the Carl Grant Events Center at Union University in Jackson, Tennessee.  Come prepared for a day of discussion of handbook policies and procedures, case studies, and employment law scenarios in movies.

For more information or to register, contact Elaine Amicone at eamicone@raineykizer.com or 731-423-2414.