The EEOC has issued new Enforcement Guidance regarding retaliation claims. The guidance effectively broadens the scope of protection offered to employees who participate in EEO proceedings or complain about discriminatory practices in the workplace.
Under the law, employers are not allowed to retaliate against an employee who is or has engaged in protected activity. The new Enforcement Guidance emphasizes that “protected activity” should be interpreted broadly. The EEOC has effectively expanded “protected activity” to include employees who participate in an employer’s internal complaint process, instead of only employees who participate in EEOC proceedings.
The new Enforcement Guidance also broadens the definition of “adverse employment action” to include not only tangible employment actions but also any action that reasonably deters an employee from engaging in a protected activity. This new definition, consistent with recent Supreme Court opinions on the subject, covers things such as changing an employee’s work schedule, threatening reassignment, or scrutinizing an employee’s work more harshly than others. The new Enforcement Guidance argues for a lower evidentiary standard for an employee to show that they suffered an adverse employment action because they engaged in a protected activity. The Guidance suggests employees should only be required to show a “convincing mosaic” of circumstantial evidence to prove they were retaliated against.
The EEOC’s new Enforcement Guidance grants employees greater protection against retaliation from an employer. If you believe that you have been retaliated against, please do not hesitate to contact Scott Gilmore Thompson.