EEOCFor the first time in nearly 20 years, the Equal Employment Opportunity Commission has issued proposed enforcement guidance regarding retaliation claims.  According to the EEOC, the revised guidance is necessary in light of several court decisions, including the Supreme Court’s decision in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), holding that retaliation claims under Title VII are subject to a “but-for” (as opposed to a “contributing factor”) causation standard.  The EEOC also notes in its 76 page proposal that new guidelines are necessary because the percentage of retaliation charges has nearly doubled since 1998, when the agency last issued guidance regarding retaliation claims.

The EEOC’s proposed guidance addresses the elements of a retaliation claim, remedies under federal anti-retaliation laws, interference claims under the Americans with Disabilities Act, and best practices for employers.   We highlight a few of the EEOC’s key proposals.

First, the EEOC proposes expanding the definition of “oppositional” activity to include implicit opposition to perceived employment discrimination.  For example, according to the proposed Guidance, if an employee merely answers questions about discrimination during an investigation, the employee could be viewed as engaging in “oppositional” protected activity.  In proposing its new  definition of “oppositional” activity, the EEOC broadly interprets the Supreme Court’s statement in Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn. 555 U.S. 271, 277-78 (2009) that a person could potentially engage in “oppositional” protected activity “by responding to someone else’s question just as surely as by provoking the discussion.”

Second, the EEOC proposes expanding the definition of “adverse action” to include any action that “might well deter a reasonable person from engaging in protected activity.”  This standard would be consisitent with the Supreme Court’s holding in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

And third, the EEOC advises employers to adopt certain best practices, including: (1) establishing written anti-retaliation policies, which include user-friendly examples of “do’s and don’ts”; (2) providing training to all employees; (3) improving practices and responses to retaliation complaints; (4) proactively following-up with relevant individuals during pending disputes; and (5) ensuring that a designated individual review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.

The public has thirty days to provide feedback and comments on the EEOC’s proposed enforcement guidance.  The guidance, if adopted, will not carry the same weight and force of law as regulations or statutes.  Still, it will inform the EEOC’s investigation and prosecution of retaliation claims.  Accordingly, employers should be prepared for an increase in retaliation claims filed, investigated and prosecuted by the EEOC and will be well-served by implementing internal controls to address the particular concerns voiced by the EEOC.

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Photo of Noa Baddish Noa Baddish

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all…

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all aspects of labor and employment law. Her employment litigation practice in state and federal courts includes class and collective actions and defending claims of discrimination, harassment, breach of contract and violations of wage and hour laws. Noa represents Major League Baseball and its clubs in an ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. In addition, Noa has represented clients in the media and entertainment and fashion industries in lawsuits brought by unpaid interns in wage and hour disputes.

Noa also provides significant assistance on counseling matters on a wide array of issues for clients in various industries, including, but not limited to, sports, law firms, financial institutions, media and fashion.

Noa has been recognized as a Rising Star by New York Super Lawyers since 2015. She has authored and contributed to several articles and newsletters on employment and labor topics, including “State Whistleblowing Laws Provide Whopping Verdicts,” New York Law Journal (January 2014). Noa is also a frequent contributor to the Firm’s Whistleblower Defense blog.

Previously served as Assistant General Counsel to the New York City Mayor’s Office of Labor Relations, Noa defended the Mayor and City agencies against both employee grievances at arbitration and improper practice petitions before the Board of Collective Bargaining. Prior to that, she was a Law Clerk to Judge Ellen L. Koblitz of the Appellate Division of the New Jersey Superior Court.

While in law school, Noa served on the Executive Board as notes and articles editor of the Fordham Urban Law Journal.