The EEOC’s Enforcement Guidance on Retaliation and What it Means for Employers

On August 29, 2016, after a nearly nine-month period of stakeholder feedback, the EEOC released its new Enforcement Guideline on Retaliation and Related Issues, which supersedes its 1998 Compliance Manual Section 8: Retaliation. The new Guidance is a response to numerous court rulings and a significant increase in the number of retaliation claims, which now constitute the most frequently alleged basis of discrimination.

All federal Equal Employment Opportunity (EEO) laws, comprised of Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Equal Pay Act (EPA), and the Genetic Information Nondiscrimination Act (GINA), prohibit retaliation arising from the exercise of one’s rights under those laws. Specifically, an employer cannot punish a person (or even a friend or family member of that person) because he or she files an EEO complaint, serves as a witness in an EEO investigation, opposes conduct by the employer that allegedly violates any EEO law, or participates in any other way in an EEO matter. The word “person” is used in this context rather than “employee” because even non-employees, such as job applicants, are protected from retaliation.

To prevail in a retaliation claim, a claimant must prove that someone engaged in protected activity, that the employer took some kind of “materially adverse” action, and the existence of a causal connection between the protected activity and the adverse action. It is not enough to show that the protected activity merely influenced or contributed to the adverse action; a but-for relationship must exist. In other words, it must be demonstrated that the adverse action would not have happened in the absence of the protected activity.

The EEOC distinguishes between two types of protected activity for purposes of its retaliation standards: “participation” and “opposition.” An individual engages in “participation” when he or she files a charge, testifies, assists, or participates “in any manner in an investigation, proceeding, or hearing” under one of the EEO laws. Participation in a formal EEOC proceeding is a precondition to invoking the protections of the participation clause. Its protections do not extend to participation in an investigation conducted by an employer unrelated to a formal EEOC charge.

An individual engages in “opposition” when he or she opposes “any practice made unlawful under the employment discrimination statutes.” An individual need not be involved in any formal EEOC proceeding or even an employer’s complaint process to invoke the opposition clause. All that is necessary is that “an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.” Examples of opposition include filing a formal complaint of discrimination or harassment with Human Resources, making a comment during a meeting, and even communicating a concern to a coworker in an informal setting. The Guidance goes on to explain that “the same conduct may qualify for protection as both ‘participation’ and ‘opposition.’ However, the opposition clause protects a broader range of conduct than the participation clause.”

The distinction between participation and opposition is important because the protections afforded by the two clauses are not identical. The EEOC’s position is that participation is absolutely protected “whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred.” That means an employer cannot take any adverse action against an individual who participates in any way in an EEOC investigation, proceeding, or hearing, even if that person knowingly, maliciously, or in bad faith fabricates a demonstrably false claim of discrimination or harassment or provides untruthful information. The prohibition even protects employees who in bad faith cover up discrimination during an investigation or proceeding.

In contrast, the protections afforded by the opposition clause are available only to employees who act in good faith. According to the Guidance, “The manner of opposition must be reasonable, and the opposition must be based on a reasonable good faith belief that the conduct opposed is, or could become, unlawful.” Employees who communicate concerns about alleged discrimination outside the context of a formal EEOC investigation, proceeding, or hearing can be subjected to adverse action by an employer if their actions do not meet the reasonableness standard. Thus, while the opposition clause affords protections against retaliation to employees who file a complaint of alleged discrimination or harassment with their employer, those protections are not available to employees who cannot meet the reasonableness standard.

An employer’s action is “materially adverse” when it might deter a reasonable person from engaging in protected activity. Note that the employer’s action does not have to actually deter someone from engaging in protected activity to be considered materially adverse. At the same time, it is not enough to show that just anyone would be deterred by the employer’s action. Instead, the Guidance imposes a reasonable person standard. Nearly any action by an employer can be considered materially adverse depending on the circumstances, from more common examples such as denial of promotion or disciplinary action, to more obscure examples such as changing an employee’s schedule or refusing to investigate a threat against an employee. The Guidance goes on to say: “A materially adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it might well dissuade a reasonable person from engaging in protected activity.” On the other hand, employer conduct that amounts to no more than “a petty slight, minor annoyance, [or] trivial punishment” does not constitute a materially adverse action.

Direct evidence of retaliatory intent, though powerful, is rarely available. Instead, most claimants rely on indirect evidence to infer retaliatory intent. Common examples include suspiciously close timing between the protected activity and the materially adverse action, demonstrated falsity of the employer’s purported reasons for the action, inconsistent or shifting explanations by the employer, or demonstrating that other similarly situated employees who did not engage in protected activity were treated favorably in comparison. This does not mean that employees who engage in protected activity cannot be held accountable for substandard performance or misconduct or that they are immune from reductions in force, downsizing, or other employer actions that affect the larger workforce.

However, employers should recognize that doing so is likely to prompt a claim of retaliation regardless of its validity. Any employer that fails to carefully document and justify the reasons for any such action is inviting an unfavorable outcome. Moreover, there is no magical amount of time after an employee engages in protected activity when it becomes “safe” to initiate action affecting that employee. A causal connection could be deemed by a court not to exist even when the adverse action occurs immediately after the protected activity because of other persuasive factors, such as documented misconduct or poor performance. The same court could deem a causal connection to exist when the adverse action occurs long after the protected activity where the employer fails to demonstrate the existence of a non-retaliatory reason for the action.

A word of caution is prudent here because there is no simple template that can be applied in every scenario to determine what is materially adverse, as opposed to what is petty or trivial. Instead, the facts and circumstances of each situation must be determined on an individual basis. As with any issue with legal implications, an employer should craft its policies toward preventing claims of retaliation in the first place, not simply trying to prevail in the event of future litigation. Taking care to avoid even an appearance of retaliation is therefore advisable. Even the lawsuits that employers win are incredibly expensive and disruptive, so leave the legal hair splitting and theoretical arguments to someone else. After all, does it really matter if you get vindicated by a jury after years of litigation and legal fees running into the hundreds of thousands of dollars, not to mention the damage to the organization’s reputation that will inevitably result from the public airing of employees’ grievances?

The Guidance provides employers with “promising practices” for minimizing the likelihood of retaliation violations. The list of practices begins with a written policy that clearly prohibits retaliation, provides examples of conduct that violate the policy, explains practical guidance for interaction between managers and employees, and establishes a reporting mechanism for employees who believe they have been the victims of retaliation. Other recommended practices include training for all employees about the existence and meaning of the written policy, a firm message from the top of the organization that retaliation will not be tolerated, supporting employees who report retaliation (including a prompt, thorough, and objective investigation of those complaints), and proactively following up with employees and managers regarding the resolution of complaints. It is not enough for an employer to simply brush off a complaint of retaliation because it thinks the complaint is invalid. Failing to conduct an investigation exposes an employer to significant risk not just in the context of that single complaint, but also any future complaints that might arise.

The entire Guidance, with cites to specific case law and other sources, can be found on the EEOC’s web site. The EEOC also offers a Questions and Answers page that summarizes the most significant aspects of the Guidance and provides references for additional assistance.

By David Vogel, EMFIG Senior Investigator and Attorney

EMFIG Welcomes Suzanne Pariser

As an experienced attorney and investigator of complex scenarios involving high-ranking employees in the public and private sectors, Suzanne has earned the respect of her colleagues and clients as poised, logical, and insightful. Suzanne previously worked as an investigator with four of her current EMFIG colleagues.  Suzanne exemplifies the crucial skills and intangible qualities that make for exceptional investigators, which is a hallmark at EMFIG. In addition to her significant experience investigating workplace harassment and retaliation complaints and ethics concerns, Suzanne is a certified investigator of campus sexual violence matters under Title IX.

What Now? – Post Investigation Communications

Bill Berger, Esq. Guest Speaker – AWI Denver Local Circle Meeting

Do you have to share workplace investigation findings with participants?

What are investigation participants entitled to know?

Are there different rules for the complainant? The “accused” individual?

These and many more questions arise in the wake of workplace investigations. Don’t miss opportunity to hear employment attorney Bill Berger discuss Post Investigation Communications at the next Denver Local Circle meeting of AWI on  Thursday, July 20, 2017, from 9:00 to 10:3o am at the University of Denver. Bring your questions and meet others who share your challenges and dedication to continuous improvement in the workplace investigations profession. The Association of Workplace Investigators gathers investigators and HR/employment law professionals to enhance the profession.

Register to attend by emailing Mark Flynn at mflynn@emfig.com and include names, email addresses, and organization of attendees.

AWI Denver – Local Circle
Thursday, July 20, 2017
9:00 – 10:30 am
Mary Reed Building, 2199 South University Boulevard, Denver, CO 80208
Renaissance Room, 2nd Floor
Continental Breakfast

Attendees with accessibility concerns, please contact Laura Maresca at 303-871-7436. Here is an Interactive Map for more detailed information.

What’s the Plan? – Internal Corporate Investigations

Denver Workplace Investigators – AWI Local Circle Meeting

The Association of Workplace Investigators gathers dedicated, experienced workplace investigators to enhance individual skills and the profession. The Denver Local Circle meeting of AWI is scheduled for Thursday, April 6, 2017, from 8:30 to 10:oo am at the University of Denver. This meeting’s discussion will focus on challenges and solutions for internal investigators and those  responsible for directing internal corporate investigations. This meeting will offer substantive discussion assisted by experienced investigators from top Denver corporations, as well as an introduction to AWI and attention to AWI’s Guiding Principles publication. Come with your questions big and small and get to know others who share your challenges and dedication to continuous improvement in the workplace investigations profession.

To register to attend, please email Mark Flynn at mflynn@emfig.com (ideally, before Monday, April 3rd) and include names, email addresses, and organization for attendees.

AWI Denver – Local Circle
Thursday, April 6, 2017
8:30 – 10:00 am
Mary Reed Building, 2199 South University Boulevard, Denver, CO 80208
Renaissance Room, 2nd Floor
Continental Breakfast

Attendees with accessibility concerns, please contact Laura Maresca at 303-871-7436. Here is an Interactive Map for more detailed information.

EMFIG Welcomes Kim DeLuca!

Having passion for your job is a great gift.

Done well, workplace investigations provide a valuable contribution to productive, effective work environments. Investigations are also labor intensive – and demand an elusive balance of aural (listening), oral, and written communication skills along with HR/employment law knowledge, and emotional intelligence, too. Many are tasked with executing this important function, but it is not for everyone. Employment Matters LLC Flynn Investigations Group (EMFIG) is grateful to celebrate Kim DeLuca as the latest addition to its team of highly experienced workplace and school investigators.

Kim has a diverse legal background having worked in a big law firm environment, in-house for a large corporation, and most recently as an investigator and manager of workplace investigation services for one of the largest and most respected employer associations in the country. Since focusing exclusively on workplace investigations, Kim has distinguished herself among fellow investigators and employers as a standout in the profession. In addition to possessing that rare combination of skills and a veteran’s perspective, Kim enjoys passion for her work. It all makes Kim DeLuca a perfect fit for EMFIG.

EMFIG welcomes Jim Long

As a former Senior Attorney with the U.S. Department of Education’s Office for Civil Rights (“OCR”), experienced workplace and school investigator, and established expert witness for parties in Title IX, Title II, and Section 504 (disability) litigation, Jim Long is a welcome addition to EMFIG. Jim is uniquely qualified to contribute to EMFIG – dedicated to excellence in Title IX and workplace investigations for schools and employers.

 

EMFIG welcomes David Vogel

Clear and concise writing to demonstrate well-reasoned analysis makes David Vogel one of the best workplace investigators I know, and a welcomed addition to EMFIG.

Welcome, Jody Luna!

I am thrilled, honored, and grateful to welcome Jody Luna to EMFIG as a Senior Investigator of workplace and Title IX matters. Jody has conducted and managed hundreds of investigations in her impressive career. Her knowledge, experience, and professionalism are preeminent in the growing field of workplace investigations. Reach Jody at jluna@emfig.com.

Can a “Privileged” Investigation also be “Independent?”

I was  honored to speak at the Colorado Bar Association’s Employment Law Section luncheon on February 18, 2016. A question was raised there that has been replaying in my head: “How can you claim that a privileged investigation is also independent?” To stop the replaying of actual or imagined dialogue in my head, I offer this post. My revised short answer is, “Pretty easily.” Before expanding on that I’ll summarize a couple points from the presentation to provide context. Absolutes are dangerous, but context always matters.

The Investigation Expectation – Workplace investigations are now inextricably intertwined with an employer’s exercise of reasonable care in response to the identification of discriminatory conduct, and an expanding host of other potential liabilities and compliance expectations.

Fundamentals – Few rules define the investigation mandate. An appropriate investigation must be prompt, impartial, and thorough. While timeliness and (more so) thoroughness come up, investigations are most often criticized for alleged bias or a lack of impartiality. “Objective,” “neutral,” and “independent” are other synonyms of “impartial” commonly used to describe the expectation. Here I note a personal preference for descriptors other than “independent,” which I like to reserve for those agencies that possess independent authority to investigate employers, such as the EEOC, NLRB, OFCCP or various state and federal law enforcement agencies. The distinction supports an important teaching point for me – in three parts.

1. Employers engage the investigation. It is the employer’s responsibility to engage an appropriate investigation no matter who investigates (inside or outside investigators in their many forms). Successful, effective investigations get to the truth of the matter at issue; and also demonstrate a clear understanding of the scope of issues for investigation.

2. Investigation scope is the employer’s prerogative.

3. Within the defined scope of issues for investigation it is my job as investigator – my professional responsibility – to demonstrate an investigation that is prompt, impartial and thorough – and meeting that end requires employer cooperation; reasonable access to the employer’s people and information. This is how “independence” is reasonably understood in this investigation context. In other words, the neutral workplace investigator does not have independent authority to investigate outside the scope established by the engaging employer, but does have an obligation to demonstrate a thorough, adequate, and otherwise reasonable (“independent”) investigation within that scope.

Attorney-Client Privilege and the Attorney Work Product Doctrine – Employment attorneys provide employers with legal advice, as well “best practices” counsel. One primary purpose of investigation interviews and investigation reports is to enable the provision of confidential legal advice to an employer-client by its attorneys. Two recent decisions from influential federal circuits underscore that, consistent with “the investigation expectation,” regardless of the absence of legal counsel in a fact-finding investigation or a dual purpose of business advice, if the investigation helps the lawyer give legal advice then the privilege applies. The second decision also explains that attorney work product protections that apply to documents prepared “in anticipation of litigation” can relate to the prospect of litigation, too, rather than exclusively active or threatened (by demand letter) litigation. See In Re Kellogg Brown & Root, Inc. et al., Petitioners, 756 F.3d 754 (D.C. Cir. 2014) and 796 F.3d. 137 (D.C. Cir. 2015); In Re General Motors LLC Ignition Switch Litigation, 80 F.Supp. 3d 521 (S.D.N.Y. 2015).

The point here is that it is only prudent to take steps at the inception of an investigation to preserve these protections. It does not matter that in the vast majority of cases the employer will waive the protection by using the investigation to demonstrate its exercise of reasonable care. Nothing about properly preserving these protections at inception of the investigation corrupts an investigator’s impartiality or independence, if you prefer. To suggest that just because an attorney directs the performance of an investigation consistent with privilege or work product protections that somehow equates to orchestration of the entire process is unpersuasive.

 

Tip of the Iceberg? – Workplace Assessment Tips

Workplace investigations and workplace assessments look a lot alike. The process of interviewing and generating a comprehensive report is usually the same for both. The term “assessment” exists to distinguish it from a garden-variety investigation. Investigations answer, “What happened?” Assessments answer, “What is going on?” Assessments are proactive where investigations are reactive. The distinction is primarily one of scope. The scope of an investigation is driven by discrete allegations of the complainant(s). The scope of an assessment is wide-open by comparison, which makes conducting assessments challenging. There is only a problem or suspicions of a problem.  Here are five tips to keep in mind:

1. Avoid “scope creep” by actively managing the scope of issues involved throughout the process, and especially at the start. Where initial identification of scope is lacking, interviews resemble assisting employees in responding to the question, “What would you like to complain about in your workplace?”

2. Identify the primary issues for attention. These are often reflected in three to five questions to address with each participant. Scope modifications may develop based on provision of additional concerns that should be supported by facts, rather than speculation.

3. Preserve the expectation that employees use complaint procedures. Engaging an assessment is an exceptional measure that does not displace your EEO policy or like policies that encourage identification of misconduct. It’s a good idea to say so.

4. Manage expectations appropriately. Employee identification of workplace concerns creates a corresponding expectation of employer action. Assessments often necessitate qualifying the organization’s intention to take action regarding ancillary concerns.

5. Prohibit retaliation for good-faith participation. As in investigations where the applicability of legal prohibitions against retaliation are not always clear, the integrity of a workplace assessment warrants the prohibition. If concerns justify engaging an assessment, it follows that no one should be penalized for participating.

Engaging an assessment places a high degree of trust in the investigator to manage scope appropriately. The goal of the final product is to provide insight based on facts and informed perspectives to support improved communications, strategic management, coaching, and corrective action. Where an assessment only resembles an extensively documented employee-opinion survey, it has gone off course.