The Equal Employment Opportunity Commission (EEOC) has proposed revised enforcement guidance on unlawful workplace retaliation. The proposed guidance will make it easier for employees to assert claims of retaliation, as an employee will only have to establish a “convincing mosaic” of circumstantial evidence to prove retaliation. All of the laws that the EEOC enforces make it illegal to fire, demote, harass or otherwise “retaliate” against applicants or employees because they complained to their employers about discrimination on the job, filed a charge of discrimination with the EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit) or engaged in any other “protected activity” under employment discrimination laws. When an employee makes a claim of retaliation, there are three essential elements that the employee must be able to demonstrate:
- That he or she engaged in a protected activity—opposition to discrimination or participation in the complaint process;
- That he or she experienced an adverse employment action, such as being demoted or terminated; and
- That there is a causal connection between the protected activity and the adverse action.
Under current EEOC guidance, a causal connection exists when there is direct evidence that retaliation was a motive for the adverse action. Typically, the adverse action must have occurred within a relatively short period of time after the employee engaged in the protected activity in order to prove that the protected activity was motivation for the adverse action.
The EEOC’s proposed guidance would require an employee claiming retaliation only to “demonstrate a causal connection between the prior protected activity and the challenged adverse action by… [showing] a ‘convincing mosaic’ of circumstantial evidence that would support the [retaliation claim].” The proposed guidance states that any “bits and pieces” that may infer retaliation must be considered. Also, the guidance would not require that the adverse action have taken place shortly after the protected activity, and it even indicates that retaliation may be established when the adverse action takes place years after the engagement in protected activity. Employers may want to consider reviewing anti-retaliation policies and conducting refresher training. In addition, be prepared to thoroughly document non-retaliatory reasons for disciplining any employee who has engaged in a protected activity.