by Kara M. Maciel, Esq. and Dan Deacon, Esq., Conn Maciel Carey
Now more than ever, employers are at an increased risk of facing a retaliation complaint as regulatory rule changes and expansive federal laws make asserting these claims much easier for employees to prevail.
Whistleblower and retaliation charges have been on the rise throughout the past decade, accounting for nearly 50% of all employment claims. Furthermore, federal administrative agencies, such as the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA), are becoming increasingly more aggressive in their enforcement efforts, and have recently taken steps to make it easier for employees to demonstrate that an employer acted with retaliatory intent.
Armed with increased financial resources, federal investigators at these agencies are more receptive to retaliation complaints, and this will certainly be reflected in claims against employers going forward.
Expected Increase in EEOC Retaliation Claims
The EEOC is one of the many tools that employees have at their disposal to attack an employer’s employment action, whether it is a termination decision, demotion, or failure to promote. The EEOC is charged with enforcing the antiretaliation provisions of several laws, including Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.
Under these statutes, generally, an employee bears the burden to show that: (1) he or she engaged in protected activity either by participating in equal employment opportunity activity or by opposing discrimination; (2) the employer took an adverse action against him or her; and (3) there is a casual connection between the protected activity and the adverse action.
While this rubric has remained static under the law, the EEOC’s interpretation of the individual elements has recently changed—making it easier for employees to establish retaliation claims against employers.
In August 2016, the EEOC revised its retaliation guidance, titled “Enforcement Guidance on Retaliation and Related Issues,” and decreased an employee’s burden of proof to demonstrate that an employer acted with retaliatory intent. In one fell swoop, the EEOC’s revisions significantly broaden the definitions of protected activity, adverse employment action, and causal connection.
Protected activity encompasses a variety of activities under what is commonly referred to as the opposition and participation clauses. Protected activity includes exercising rights under a statute, lodging internal complaints, submitting complaints to government agencies such as the EEOC, filing a lawsuit against the employer, participating in an internal investigation, requesting an accommodation, requesting medical leave, filing a workers’ compensation claim, and supporting another employee’s complaint.
The guidance explains that for statements or actions to be considered protected, an employee need only have a reasonable good-faith belief that a matter violates equal employment opportunity law. Additionally, because employees may not be aware of the antidiscrimination laws, vague or ambiguous complaints may also be considered protected opposition if the complaint could reasonably be interpreted as opposition to employment discrimination. This broad interpretation of protected activity essentially opens an employer up to risk of a retaliation complaint based on any employee complaint, especially considering the new, less strenuous standard to demonstrate causation.
With respect to the adverse action element, the EEOC noted that adverse action is broader in the context of antiretaliation than under other nondiscrimination provisions. An adverse employment action sufficient to support a retaliation claim varies depending on where the case is filed and the statute or common law claim that provides the cause of action.
However, courts generally require that the employment decision be objectively harmful to the employee to be considered an adverse employment action. This includes termination, a demotion, reassignment to a less desirable position or duties, reduction in hours, failure to promote, and disciplinary actions.
Finally, an employee can establish a causal connection between the protected activity and adverse employment action through direct or circumstantial evidence. However, the employment action does not have to have a tangible effect on the individual’s employment, and it need not actually deter the individual from engaging in protected activity. Rather, it only must have the potential to do so.
Finally, under the causation element, the traditional “but-for” causation analysis does not require that retaliation be the sole cause of the action. Instead, there can be multiple but-for causes, and retaliation need only be one of the but-for causes of the materially adverse action for an employee to prevail.
The guidance also adopts the position that an individual can demonstrate a causal connection with what the EEOC refers to as a “convincing mosaic,” which is explained as a combination of “different pieces of evidence to satisfy . . . the causation standard.”
In other words, an employee can make a case if he or she can cite to individual pieces of evidence which, in combination, infer retaliatory intent. The pieces of such a mosaic may include “suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, false reasons given by the employer for an adverse action, or any other pieces of evidence which, when viewed together, may permit an inference of retaliatory intent.”
Due to the EEOC’s broadening of retaliation standards, an employer facing a retaliation claim before the EEOC will be scrutinized much closer than before and EEOC inquiries into an employer’s actions and employment policies will likely increase.
How is OSHA handling whistleblower protections? Part two of this article will focus on OSHA’s revamping of its whistleblower protections under various laws, and recommendations for employers.
For more information on whistleblowing, join Kara, as she presents, “OSHA’s New Whistleblowing Requirements: How to Steer Clear of Legal Missteps Amid Increased Employee Protections,” on November 30, 2016. Click here for more information.
Kara Maciel is chair of Conn Maciel Carey’s national Labor Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship. Ms. Maciel works to create workplace solutions for her clients across all industries. She defends employers in litigation at both the federal and state levels, including matters related to ADA, FLSA, FMLA, OSHA, Title VII, and affirmative action/OFCCP regulations. She advises clients regarding the protection of trade secrets and the misappropriation of confidential or proprietary information, both defending employers and pursuing enforcement against former employees. When relevant, Ms. Maciel provides advice and counsel to unionized and non-unionized workplaces regarding the employer’s rights under the National Labor Relations Act. Ms. Maciel counsels employers on how to develop lawful strategies to comply with the Affordable Care Act (ACA).
Dan Deacon is an associate in Conn Maciel Carey’s Labor & Employment Practice Group and OSHA Practice Group. Mr. Deacon advises and represents employers in all aspects of the employer-employee relationship including wage and hour disputes, claims of discrimination, compliance with the ADA, ACA, and FMLA. He works with employers to develop and implement effective workplace policies and safety and health programs. Additionally, Mr. Deacon counsels employers during inspections and investigations conducted by federal Occupational Safety and Health Administration (OSHA) and state OSHA programs, and responds to notices from OSHA about employee complaints of safety hazards. Mr. Deacon also represents employers in OSHA litigation, including citation contests and administrative hearings.