The U.S. Equal Employment Opportunity Commission recently proposed changes to the guidance it issues on workplace retaliation, which could drastically expand the definition of retaliation. The proposed changes, the first in nearly 20 years, are intended to update the EEOC Compliance Manual on Retaliation. Although the compliance manual does not have the authority of a regulation or administrative decision, the EEOC’s investigators heavily rely upon it in their examination of employee complaints. The shifting definition of retaliation creates uncertainty for employers in complying with the law, and is a sign of the EEOC’s complainant-friendly philosophy.
By way of background, the law currently safeguards employees from adverse employment actions as a result of their participation in protected activity, including participating in the administrative or litigation process by filing a complaint or serving as a witness in an investigation, or opposing a practice or action that is unlawful under a federal anti-discrimination statute. Importantly, the latter is only protected when the employee reasonably believes that the law has been violated. No reasonableness requirement exists for participation activity, and the conduct is protected even if the underlying claim is not meritorious.
Despite several courts holding the contrary, the EEOC proposes treating an employee’s internal complaint as participation activity. As a consequence, internal complaints need not be reasonable or valid to earn the protections of the law. Thus, despite the disruption to the workplace and potential harm to those involved, employers would need to tread lightly when dealing with internal complaints — even those they may categorize as frivolous.
Additionally, the EEOC’s proposal defines “protected opposition activity” in a way that virtually eviscerates the reasonableness requirement. According to the proposed changes, opposition activity would extend to protesting discrimination in an industry or society in general — with no connection to the workplace itself.
The EEOC is accepting comments in response to the proposed changes through February 24, 2016.
It is of utmost importance that employers remain apprised of the pending changes and prepare by updating their policies, establishing protocols, and ensuring that managers, supervisors, and human resources professionals are properly trained in handling employee complaints.
If you have any questions about how this could impact your business, please contact: