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Labor and Employment Update: Sweet Revenge? Retaliation is Costly: New EEOC Guidance

The number of employees alleging that employers have retaliated against them for filing claims of discrimination has more than doubled over the past few years. The Equal Employment Opportunity Commission (EEOC) calculated that in 1997 alone, it received over 18,113 retaliation charges. In the first nine months of 1998, almost 13,000 such claims have been filed -- approximately 22 percent of the EEOC's caseload is comprised of retaliation charges.

Retaliation issues are of critical importance because an employer can be liable for retaliation even if it is not liable for the underlying discrimination of which the employee complains. For example, assume an employee complains that she was demoted because of her age, and, after learning of the complaint, the employer terminates her.

Even if the employee's age played no role in her demotion, the employer can still be held liable for retaliatory discharge. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996).

In light of the steady press of retaliation charges, the EEOC has issued a Compliance Manual to provide guidance for analyzing and investigating retaliation claims within the maze of EEOC-enforced statutes. We will cover the highlights and major changes of the Manual in this Update.

The Manual begins with the premise that individuals who assert their rights under EEOC-enforced laws are protected from retaliation at the hands of their employers. The EEOC rationale is that in forcefully prohibiting retaliation, employees will be encouraged to speak out against unlawful employment discrimination.

Broader than Past Guidance

The EEOC enforces:

In the new guidance, the EEOC has indicated that it believes that the same remedies are available under all these statutes, in spite of the fact that the ADEA and the EPA contain different language than Title VII and the ADEA.

Temporary or Preliminary Relief

The EEOC indicates that it will seek temporary or preliminary relief to stop retaliation before it occurs or continues "if there is substantial likelihood that the charging party and/or the EEOC will likely suffer irreparable harm because of the retaliation."

Both Title VII and the ADA contain specific language authorizing the EEOC to seek temporary relief. In the absence of such language in the ADEA and the EPA, the EEOC indicates it will rely on the applicable provisions of the Federal Rules of Civil Procedure to seek appropriate temporary relief.


The EEOC now asserts that it believes that damages are available for retaliation under the EPA and the ADEA, as well as under Title VII and the ADA. It believes that damages for retaliation claims under the EPA and the ADEA are not subject to any statutory cap. Claimants, therefore, may try to assert claims based on age or pay to get around the statutory caps that would otherwise apply.

Elements of a Retaliation Claim

The Manual sets forth the elements of unlawful retaliation. An individual who alleges unlawful retaliation must establish the following:

  1. He or she either opposed an employer's unlawful practice or participated in a proceeding covered by EEOC-enforced statutes;
  2. He or she was subjected to an adverse action by the employer; and
  3. The employer took the adverse employment action against the employee in response to the protected activity.

All three elements must be established.

What Is Protected Activity?

Individuals who engage in either oppositional or participatory activity are protected from retaliation. An employee who engages in oppositional conduct opposes discrimination in the workplace and communicates his or her belief that the conduct is unlawful. An employee engages in participatory activity if he or she made a charge, testified, assisted, or participated in an investigation, hearing, or the litigation of a discrimination claim.

Examples of oppositional activity include:

  • Threatening to file a charge or formal complaint alleging discrimination.
  • Complaining to anyone about alleged discrimination against oneself or others.
  • Refusing to obey an employer's discriminatory order.
  • Requesting accommodations for either religion or disability.

Example of participatory activity includes:

  • An employee contacting an EEO counselor, regardless of whether the allegations are valid or reasonable.

Retaliating against a job applicant or current employee because the individual opposed or participated in some protected activity against a former employer is also unlawful conduct.

What Constitutes an Adverse Action?

In what may prove to be highly controversial, the EEOC indicates that retaliatory acts taken by employers against individuals who allege discrimination do not have to be "ultimate employment actions" or materially affect the terms or conditions of employment to constitute retaliation.

The EEOC has decided to disagree with the Fourth, Fifth, and Eighth Circuits by stating that any adverse treatment that is based on a "retaliatory motive" and is reasonably likely to deter engaging in protected activity is prohibited. It does note that the retaliatory treatment cannot be petty slights or trivial annoyances, but must be serious.

Ultimate employment actions include termination, refusal to hire, as well as failure to promote an individual. Examples of adverse action include placing an employee under surveillance after a charge is filed with the EEOC or failing to include an employee who filed a charge in a firm-wide activity.

However, not inviting the same employee out to lunch with a few other employees would not be considered adverse employment action. The line between a trivial annoyance and adverse action may be very fine indeed. While courts are not obligated to follow the EEOC's guidance on this issue, its position could be influential -- or at least lead to more litigation.

Gone But Not Forgotten: Post Termination Adverse Actions

Reiterating a relatively recent and important Supreme Court ruling, the EEOC emphasizes the risk to employers even after an employee is gone. In Robinson v. Shell Oil Co., 117 S.Ct. 843 (1997), the Court held that Title VII prohibits employers from retaliating against current and former employees.

Therefore, in light of Robinson and the new EEOC guidance, employers should recognize the danger inherent in making comments about former employees who have lodged discrimination claims. Actions designed to interfere with an ex-employee's future job prospects can lead to a retaliation claim.

The EEOC guidance, however, indicates that a single negative job reference based on performance and without a retaliatory motive should not constitute unlawful retaliation. Beware that conduct designed to interfere with an individual's employment prospects is unlawful, regardless of its ultimate effect or influence. A safe bet is to speak exclusively of the employee's job performance and not mention any contested activity.

What Can an Employer Do?

Has the EEOC awarded life-long employment to protesting employees? Not exactly. An employer may still discipline an employee who has engaged in protected activity, but must do so carefully and only for legitimate and non-retaliatory business reasons. While an employer need not turn a blind eye to poor performance, the employer should carefully consider whether the adverse action may be perceived as retaliatory.

Remember, every action taken by an employer against an employee who has engaged in protected activity may need to be explained to a state or federal agency and even a jury. A good rule of thumb is to continue to treat the employee who has engaged in protected activity the same as any other employee -- no better, but more importantly, no worse.

The consequences of engaging in unlawful employment retaliation can be severe. Compensatory and punitive damages are available for retaliation claims.

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