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The EEOC Retaliates on Retaliation, and Employers are Caught in the Crossfire

NOTE: The EEOC guidance on retaliation can be found here:

One of the hands-down most difficult positions an employer may find itself in is the time period immediately following an employee reporting discrimination. If the employee engages in some form of conduct that is protected by a nondiscrimination statute such as Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act, any adverse action taken by the employer against that employee may be scrutinized as sign of retaliation, which is prohibited by these laws. Thus, the reporting of potential discrimination or the filing of any claim with the Equal Employment Opportunities Commission (“EEOC”) and other investigators produces a chilling effect on the discipline or even termination of that employee, even for unrelated issues. 

Luckily, the EEOC recognizes that non-retaliation provisions of antidiscrimination laws exist to prevent bad actors from punishing legitimate claims of discrimination, rather than to provide a safe harbor for poor employee performance following protected activity. Unluckily for employers, new guidance from the EEOC broadens both the scope of employer conduct that is considered retaliation and the concept of what is considered causation, opening up a world of possibility for retaliation claims.

According to the EEOC, 45% of all charges they receive are claims of retaliation, and the new guidance reflects a host of interpretations handed down from the Supreme Court and others since the last guidance was published in 1998. What remains unchanged from that guidance are the three elements of a retaliation claim:

  1. An employee has participated in a protected activity (generally some complaint of harassment or discrimination).
  2. The employer takes a materially-adverse employment action against the employee.
  3. There is a causal connection between the protected activity and the adverse action taken.

What has changed is that newer interpretations have expanded the breadth of these elements. For instance, the 2009 U.S. Supreme Court holding in Crawford v. Metropolitan Government of Nashville and Davidson County opened up the element of what constitutes “protected activity,” finding that retaliation provisions protect not just employees who report discrimination, but those who answer the questions of investigators as well. Similarly, the “causal connection” element no longer must show that retaliation is the only direct cause for the adverse employment action. If there are several causes for the adverse employment action – for instance, if an employee is habitually late or takes too many breaks, and the employer has let them slide until now – and retaliation is one of them, the “causal connection” element has been satisfied.  In other words, retaliation now merely has to be A cause, not THE cause of the adverse employment action to satisfy this element. Even a convincing pattern of circumstantial evidence that shows retaliatory intent will suffice.

The guidance does attempt to set guidelines for the reasonableness of the retaliation claim by establishing that the manner of opposition to employment practices must be both reasonable in manner and taken in good faith. So, for instance, a female applicant for an accounting job who claims discrimination when a male is hired for the job even though she knows she lacks the requisite CPA licensing is not protected against adverse employment actions in response because her claim is not made in good faith. The cloud that surrounds this silver lining is that the guidance specifies that a retaliation claim may still be valid even if the underlying activity that led to the claim is found to be lawful. Retaliation claims are not dependent upon actual discriminatory or harassing behavior by the employer, but rather by adverse actions taken against employees specifically for speaking out against employment practices.

The guidance isn’t all bad news for employers. It comes with both a Q&A document and a Small Business Fact Sheet that provide practical lists and admonishments for employers. The guidance itself contains several helpful examples of circumstances that would appear to be retaliation, and all of these EEOC documents combine to show a strong effort on the part of the EEOC to assist employers with understanding what behavior is permissible when dealing with employees who oppose employment practices. In other words, the EEOC knows it is casting a wider net, but it is hoping to guide businesses away from it.

Employers should scrutinize this guidance, available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm, and take note of both protected activities of employees and actions that may be perceived as retaliatory. In effect, when an employee questions an employment practice, the employer must immediately place that employee in an almost heightened status with respect to any potentially adverse actions and evaluate whether the action is truly necessary. Beyond that? My advice is to call a lawyer.

Cindy EffingerCynthia L. Effinger, an attorney with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400, ext. 2316.

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This article does not constitute legal advice.

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