As has been the case since 2009, the Equal Employment Opportunity Commission again reported that retaliation remained the most frequently filed discrimination charge in fiscal year 2015.  With the continued upward trend of these claims, the EEOC has issued new proposed guidance which broadly interprets provisions of this protective legislation. The last guidance it issued on retaliation was in 1998.

The purpose of the guidance is to inform the public about how the EEOC may guide its personnel in processing and investigating discrimination charges filed by employees and in considering what litigation it may bring for enforcement.  Essentially, it is used as a reference by EEOC staff in making decisions on claims.  The proposed guidance can be found at http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.

An employee bringing a retaliation claim must prove:  (1) the employee engaged in a statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) the protected activity and the adverse employment action were causally connected.  The new guidance takes an aggressive position on what is within the scope of protected activity in the workplace.  For example, the EEOC interprets “participation activity” to include an internal complaint made with an employer whereas courts generally require some connection to an actual administrative complaint or the litigation process.  This difference in scope from the EEOC can have significant consequences for employers.

While EEOC guidance is not controlling, it can be persuasive to a court.  As the US Supreme Court explained in Young v. United Parcel Service, Inc. issued in March 2015, the weight placed on guidance should be based upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.”

Companies have 30 days to review and comment on the draft guidance, which ends on February 24, 2016.  Input may be submitted at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will review all comments and consider revisions to the draft guidance.