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UPDATE ON RETALIATION CLAIMS

11th Annual ABA Section of Labor and Employment Law ConferenceWashington, D.C.

November 10, 2017

Kathy Barnard Tiffany A. Buckley-NorwoodSchwerin Campbell Barnard Iglitzin & Lavitt LLP Jackson Lewis P.C.(206) 257-6002 2000 Town Center, Suite 1650www.workerlaw.com Southfield, MI 48075

Tiffany.Buckley@jacksonlewis.comwww.jacksonlewis.com

Jillian M. Cutler Jo Linda JohnsonFrank Freed Subit & Thomas Director705 Second Ave., Suite 1200 Civil Rights Division (CRD)Seattle, WA 98104 Transportation Security Administration(206) 682-6711 JoLinda.Johnson@tsa.dhs.govjcutler@frankfreed.comwww.frankfreed.com

Tamika LynchSenior CounselSiemens Corporationtamika.lynch@siemens.com

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I. INTRODUCTION

Title VII provides protection against retaliation for those who participate in EEOprocedures or oppose discrimination. Section 704(a) of the statute states:

It shall be an unlawful employment practice for an employer to discriminateagainst any of his employees or applicants for employment, for an employmentagency … to discriminate against any individual or for a labor organization todiscriminate against any member thereof or applicant for membership, because hehas opposed any practice made an unlawful employment practice by thissubchapter, or because he has made a charge, testified, assisted, or participated inany manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis supplied). To assert a retaliation claim under federal EEOlaws (including Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, and GINA)1, aplaintiff must show that he or she (1) engaged in prior protected activity; (2) the employer took amaterially adverse action; and (3) the requisite level of causal connection between the protectedactivity and the materially adverse action.

On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issuedthe EEOC Enforcement Guidance on Retaliation and Related Issues. It is the first time since1998 that the Agency updated its guidance on retaliation.

II. PROTECTED ACTIVITY

There are two-types of protected activity under Title VII and other federal EEO laws:participating in an EEO process (“the participation clause”) and reasonably opposing unlawfulconduct (“the opposition clause”). The participation clause prohibits retaliation against anyindividual “because he has made a charge, testified, assisted, or participated in any manner in aninvestigation, proceeding, or hearing” under the EEO laws. 42 U.S.C. § 2000e-3(a). The“opposition” clause prohibits retaliation against any individual “because he has opposed anypractice made an unlawful practice” by the EEO laws. Id.

The two types of protected activity differ in scope. As the EEOC Guidance explains,“Participation in an EEO process is more narrowly defined to refer specifically to raising a claim,testifying, assisting or participating in any manner in an investigation, proceeding or hearingunder the EEO laws, but it is very broadly protected. “ Guidance at 6. “By contrast, oppositionactivity encompasses a broader range of activity by which an individual opposes any practicemade unlawful by the EEO statutes, “however, the protection is limited to individuals who have

1 The anti-retaliation language under each of these statutes is similar to that for Title VII.

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“a reasonable, good-faith belief” that an EEO violation exists and who “act in a reasonablemanner to oppose it.” Id.

Protected participation and opposition are not mutually exclusive categories. The EEOCadvises, “Depending on the facts, the same conduct may qualify for protection as both‘participation’ and ‘opposition,’ however, the opposition clause protects a broader range ofconduct than the participation clause.” Guidance at 10.

A. The Participation Clause

1. Participating in Internal Employer Investigations

a) Current Case Law

Federal courts have construed the participation clause to protect individuals who raise adiscrimination claim, testify, or assist in an EEOC investigation, administrative proceeding, orlawsuit. In Crawford v. Metropolitan Government of Nashville & Davidson County, 129 S. Ct.846, 853 (2009), the Supreme Court held that an employee’s participation in an employer’sinternal investigation is protected by the “opposition” clause, and left open the question ofwhether it was also protected by the “participation” clause. All federal courts of appeal that haveexamined the issue have held that participating in an employer’s internal EEO investigation isnot protected activity under the participation clause. See e.g. Towsend v. Benjamin Enters., Inc.,679 F.3d 41, 48-49 (2d Cir. 2012) (participation clause of Title VII’s anti-retaliation provisiondoes not protect participation in internal employer investigation not associated with any formalEEOC charge). Although, frequently, federal courts will simply hold that an internal complaintof discrimination is “protected activity” under Title VII, without distinguishing between theparticipation and opposition clauses. See, e.g. Moody v. Atl. City Bd. of Educ., 870 F.3d 206 (3dCir. 2017) (reporting sexual harassment to employer constitutes “activity protected by Title VII);Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 933 (7th Cir. 2017) (“Undeniably, lodginga sexual-harassment complaint is a statutorily protected activity.”).

The distinction between participation and opposition becomes important when there is aquestion regarding the reasonableness of the plaintiff’s belief that the underlying conductviolated Title VII. Once again, protection under the participation clause is absolute whereasprotection under the opposition clause requires that the plaintiff have a reasonable, good faithbelief that the EEO law at issue has been violated. This distinction could create a conflict in theEEOC’s guidance; however, because conduct that would now fall within both the participationclause and opposition clause, such as making an internal complaint, may constitute protectedparticipation and unprotected opposition simply because it is not done in good faith.

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b) The EEOC Guidance

The EEOC’s prior guidance followed the case law trend by defining participation toinclude filing an EEOC or state administrative agency charge, filing a lawsuit or participating insuch proceedings. However, the EEOC’s 2016 Guidance now goes beyond the current trend incase law and endorses the view that participation in an employer’s internal investigation of adiscrimination or harassment allegation is protected activity under both the participation andopposition clauses. Guidance at 8-9. In doing so, the EEOC noted how the Faragher-Ellerthaffirmative defense in harassment cases had changed the workplace landscape since theGuidance was originally published. Employer’s internal investigations of harassment claimshave now become embedded in the EEO enforcement process such that distinguishing betweenretaliation arising from participation in the internal investigation and retaliation arising from theEEOC investigation becomes meaningless. See Guidance at 9-10.

From the plaintiff’s perspective, expanding coverage to internal workplace complaintsand investigations is critical to preventing retaliation in the workplace. All too often, it isparticipation on that level – before the EEOC or the courts become involved – that drawsreprisal. Furthermore, if the courts follow the EEOC’s lead and hold that the participation clauseincludes reporting discrimination to management and participating in internal EEOinvestigations, the question of whether reported harassment is sufficiently severe or pervasive totrigger anti-retaliation protection will become largely moot.

The issue for employers is the absolute nature of the participation clause’s protections, asinterpreted in the EEOC’s 2016 Guidance. An individual who participates in the EEO process isprotected from retaliation without regard to: (1) the merit or timeliness of the underlyingdiscrimination complaint; and (2) whether that person is acting on a reasonable belief or in goodfaith, cautioning against “some slippery reasonableness standard” that may chill participationand/or influence the input of complainants or witnesses. Guidance at 6-7. Thus, while it hasbeen traditionally understood that an employee’s activity is protected even if an employee makesincorrect statements in the course of participation, the EEOC’s guidance goes one step further toindicate participation is protected even if done in bad faith or based on intentionally falsestatements. To support this assertion, the EEOC points to cases in which courts have found even“defamatory” or “maliciously libel statements” in an EEOC charge are protected, and expresslydisagrees with cases holding to the contrary.

In this regard, according to the EEOC, an employer can evaluate truthfulness as part of itsinvestigation into an internal complaint, but it may be held liable for retaliation if it imposesdiscipline on an employee for making a complaint in bad faith. Additionally, participationprotection is not just limited to employees who make bad faith statements allegingdiscrimination. As the guidance states in footnote 16, “In the Commission’s view, playing anyrole in an internal investigation should be deemed to constitute protected participation.

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Otherwise those providing information that supports the employer rather than the complainantcould be left unprotected from retaliation.”

For employers, who are struggling with this guidance, the Eight Circuit Court ofAppeals’ opinion in Gilooly v. Mo. Dep’t of Health & Servs., 421 F.3d 734, 740 (8th Cir. 2005),may provide some comfort as it indicates the courts are not in wholehearted agreement with theEEOC’s position. In Gilooly, the Court noted the inherent struggle for employers and stated:

It cannot be the case that any employee who files a Title VII claim and isdisbelieved by his or her employer can be legitimately fired. If such werethe case, every employee could be deterred from filing their action and thepurposes of Title VII in regards to sexual harassment would be defeated.However, it also cannot be true that a plaintiff can file false charges, lie toan investigator, and possibly defame co-employees, without sufferingrepercussions simply because the investigation was about sexualharassment. To do so would leave employers with no ability to fireemployees for defaming other employees or the employer through theircomplaint when the allegations are without any basis in fact.

Therefore, the Gilooly’s court’s instruction is that reasons for discipline or discharge must be“sufficiently independent” to constitute legitimate, non-retaliatory reasons. Id. Suspicionsregarding the substance of a complaint “are not sufficiently independent,” particularly where thesuspicion arises from an assessment of witness credibility. Id. However, clearly false statementsare not protected activity, and can be legitimate reasons for termination. Id. (quoting Sweeney v.City of Ladue, 25 F.3d 702, 704 (8th Cir. 1994) (holding that a related third party's lies during aninvestigation were not protected activity)).

In Gilooly, the plaintiff was not caught in an unequivocal lie; but, rather, an investigatorfound the plaintiff less credible than other witnesses. Therefore, he was presumed to have lied,and he was discharged based on this presumption. The Gilooly court denied the employer’smotion for summary judgment as to the plaintiff’s retaliation claim because it decided that thequestion of protected conduct was one for the fact-finder. In contrast, as the Gilooly courtindicated, if there was “a clearer record of deception” and a detailed basis for the findings, thecourt could have found that the plaintiff’s termination was not for protected conduct and grantedsummary judgment.

As alluded to in the Gilooly court opinion and expressly stated in other court opinions,the law also still allows employers to administer discipline or discharge for improper conductthat is wholly unrelated to, but occurs during, an investigation.

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B. The Opposition Clause

Unlike participation, opposition was already defined very broadly by EEO statutes,according to the EEOC’s guidance. It makes it unlawful to retaliate against an individual foropposing any practice made unlawful under the antidiscrimination laws. As previouslyindicated, because of the EEOC’s expansive reading of “participation”, there is now significantoverlap between participation and opposition. Now, both participation and opposition includefiling an EEOC charge or lawsuit, or making a complaint to a supervisor or through anemployer’s internal complaint procedure, in the EEOC’s view.

1. Putting the Employer on Notice of a Discrimination Complaint

Only comments or conduct that put the employer on notice of potential discrimination orharassment are protected under the opposition clause. See, e.g. In Cole v. Board of Trustees ofNorthern Illinois University, 838 F.3d 888, 902 (7th Cir. 2016) (employee’s ethics complaint thatpresented no nexus to a protected class was not protected activity under Title VII). In practice, itis not always clear whether an employee is complaining about conduct that is discriminatory orsimply objectionable.

Taking its cue from the Supreme Court’s language in Crawford, the EEOC’s Guidancestates that opposition also includes virtually any communicated employee belief that theemployer engaged in employment discrimination. Guidance at 10. The communication does noteven need to be made to the employer, so long as the employer learned of it. Id. at 12. Underthe EEOC’s Guidance, it is protected opposition for an employee to contact the EEOC, anothergovernment agency, or the police to report discrimination, harassment or assault. Id. at 12-13.An employee who contacts an attorney or their labor union would also be protected. Id. at 12.

Additionally, the communication can be implicit or explicit, and it need not include thewords “discrimination”, “harassment” or other legal terminology. Guidance at 11. Thus,according to the EEOC, opposition can include:

∂ complaining or threatening to complain about alleged discrimination againstoneself or others;

∂ providing information in an employer's internal investigation of an EEO matter;

∂ resisting sexual advances or intervening to protect others;

∂ accompanying a co-worker to the human resources office to make a complaint;

∂ refusing to obey an order reasonably believed to be discriminatory, such asrefusing to follow a supervisor’s instructions to fire a junior worker fordiscriminatory reasons;

∂ picketing or informal public protest;

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∂ writing letters to customers or other third-parties protesting discrimination in anindustry or general society; or

∂ other “circumstances” that show the employee is conveying opposition orresistance to a perceived EEO violation.

As the Guidance states, in some instances, a “broad or ambiguous” complaint of unfairtreatment may even be enough. Guidance at 12. The EEOC’s focus will be on whether thecomplaint “would reasonably have been interpreted as opposition to employmentdiscrimination,” regardless of whether the employer actually interpreted it as such. Id. Inessence, the standard put forth by the EEOC attaches anti-retaliation protection to a complaintthat the employer knew or should have known the employee conveyed opposition to employmentdiscrimination. Even this revised standard, however, should not require employers to becomemind readers in trying to decipher whether an employee is opposing discrimination. Forexample, a court opinion issued four months after the EEOC’s Guidance reiterated, “a vaguecharge of discrimination in an internal letter or memorandum is insufficient to constituteopposition to an unlawful employment practice.” Hagelthorn v. Henry Ford Health Sys., No.15-cv-12635, 2016 U.S. Dist. LEXIS 170356, 2016 WL 7178737 (S.D. Mich., Dec. 9,2016)(quoting Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir.1989)).

However, exactly one week after the EEOC issued its 2016 Guidance, a court found theemployer’s conduct instructive in determining whether protected activity occurred. In EEOC v.East Columbus Host, LLC, No. 2:14-cv-1696, 2016 U.S. Dist. LEXIS 118993, 2016 WL4594727 (S.D. Ohio, Sept. 2, 2016), the EEOC brought claims on behalf of 12 namedcomplainants and a class of similarly situated women, alleging sexual harassment and retaliationin violation of Title VII. The defendant moved for summary judgement as to the claims of tenwomen, and the court made note that the alleged protected activity for one of the women was the“closest case.” The woman never directly opposed or confronted the alleged harasser’s improperconduct and, instead “laugh[ed] it off and tacitly refus[ed] to go along with his sexual innuendosand advances.” While the court characterized this as “thin evidence of protected activity”, itultimately erred on the side of denying summary judgment because the alleged harasser himself,through his conduct, showed that he “interpreted the ‘laughing it off’ as resistance because heeventually asked her why she continued to resist him and then arguably punished that resistanceby refusing her requested time off.”

2. Is the Manner of Opposition Reasonable?

Despite the broad definition of opposition, it is not without limits. Both courts and theEEOC’s Guidance balance the employees’ right to oppose an EEO violation with the employer’sright to maintain a properly functioning workplace. Therefore, the opposition must be made in areasonable manner. It should not involve illegal activity, such as threatening violence or causingproperty damage. Furthermore, an employee who is opposing an EEO violation must continue to

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perform their job effectively. If their opposition activity prevents them from doing their job orcauses them to neglect job duties, the employee may be subject to discipline or discharge.

Opposition conduct that is overly disruptive or excessive also may not be protected.Courts assess the totality of the circumstances when examining whether an employee’sopposition to discrimination is reasonable. While employees opposing discrimination may alsonotify her coworkers of the EEO violation, they may not badger or coerce their coworkers tosupport them, or make an “overwhelming” number of “specious complaints.”

3. Is there a Reasonable Good Faith Belief the Conduct Opposed is Illegal?

As both case law and the EEOC Guidance reflect, unlike participation, opposition mustbe based on a reasonable good faith belief that there has been discrimination under federal law,even if the conduct opposed is ultimately deemed lawful. However, the EEOC considers its ownpositions, even if not adopted by the courts, to be a safe harbor for demonstrating reasonablegood faith belief. Guidance 18. For example, an employee can rely on the EEOC’s position thatdiscrimination on the basis of sexual orientation is a violation of law.

In Clark County School District v. Breeden, 532 U.S. 268, 270, 121 S. Ct. 1508, 1509,149 L.Ed.2d 509 (2001) (per curiam), the Supreme Court held that one sexist comment did notcreate a reasonable belief of discrimination sufficient to trigger protection under the oppositionclause. In that case, the plaintiff had complained about an incident in which, while she wasreviewing job applicants with a male supervisor and another male employee, the supervisorcommented to her that he did not understand a sexually explicit statement that one of theapplicants had made. At that time, the other male employee responded, “Well, I'll tell you later,”and both men chuckled. Id. at 269–70. The Court noted that “simple teasing, offhand comments,and isolated incidents (unless extremely serious) will not amount to discriminatory changes inthe ‘terms and conditions of employment’ ” so as to violate Title VII, and held that the singleincident described in that case could not remotely satisfy this standard. Id. at 271 (quotingFaragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Accordingly, the Supreme Courtheld that the plaintiff's complaint about this incident did not qualify as protected activity. See id.at 270.

Taliaferro v. Lone Star Implementation & Electric Corporation, 693 Fed. Appx. 307 (5thCir. 2017) (per curium), provides a stark example of how the legal standards for harassment andprotected activity can be conflated in a way that denies employees anti-retaliation protection. InTaliaferro, the Fifth Circuit held that a woman who was fired two days after complaining thather boss had texted her propositioning her for a “hot date” had not engaged in protected activity.In this case, the district court dismissed Taliaferro’s claim on the ground that her complaintfailed to adequately allege grounds for a reasonable belief that Hobbs’s text-messages constitutedan unlawful practice under Title VII. The court noted that Hobbs’s conduct, “while insensitive,inappropriate, and unbecoming, was neither sexually explicit nor was it pervasive.” Taliaferro v.

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Lone Star Instrumentation & Elec. Corp., 212 F.Supp.3d 714, 718 (W.D. Tex. 2016). The FifthCircuit agreed that the employee could not reasonably have believed that a single text messageconstituted an unlawful employment practice and affirmed the decision granting summaryjudgment to the employer.

Similarly, in Castleberry v. STI Group, 863 F.3d 259 (3d Cir. 2017), two African-American employees alleged they were fired for reporting racially discriminatory remarks totheir employer. Because their complaint was made internally, under current case law, it wasprotected under the opposition clause, but not the participation clause. The district courtdismissed the plaintiffs’ retaliation claim on a 12(b)(6) motion on the basis that wasunreasonable for them to believe that a single racist remark could amount to unlawful activity.The First Circuit reversed and held that a single incident can amount to unlawful activity,particularly when applying the severe or pervasive standard. Castleberry, 863 F.3d at 266-67.

In EEOC v. Rite Way Service, Inc., 819 F.3d 235 (5th Cir. 2016), the Fifth Circuitexamined whether an employee (Ms. Tennort) who made a statement during an internalinvestigation corroborating a co-worker’s sexual harassment claim had engaged in protectedactivity by opposing discrimination.2 The district court granted summary judgment to theemployer on the ground that Tennort could not have had a reasonable belief that harassment roseto the level of a Title VII claim, and, therefore, she had not engaged in protected activity.EEOC, 819 F.3d at 239. The legal issue before the Court was whether the “reasonable belief”standard applies to a retaliation claim brought by a third-party witness who was fired soon afteranswering questions in response to a company investigation into sexual harassment allegations.The Court held that the same reasonable belief standard that applies to individuals whoaffirmatively report discrimination also applies to third-parties who respond to questioning abouta discrimination allegation. EEOC, 819 F.3d at 240-42.

However, the Court reversed the summary judgment decision on the ground that a jurycould conclude that Tennort reasonably believed she was providing information about a Title VIIviolation. Id. at 242-44. In reaching that conclusion, the Court considered the setting in whichTennort voiced her complaint. The Court noted, “This is where the reactive nature of Tennort’scomplaint sets it apart from the more common proactive opposition case.” Id. at 244. As part ofher hiring process, Tennort had received a pamphlet informing her that sexual harassment is aform of workplace discrimination that the company does not tolerate, she witnessed a newsupervisor make unwelcome sexual comments to her co-worker, and she was asked about one ofthe incidents by a human resources representative, who insinuated she should not corroborate the

2 It is worth noting that at the district court level, the EEOC also argued that the plaintiff’sactivities were protected participation, but dropped that argument on appeal. EEOC, 819 F.3d at239, n.2. The Fifth Circuit called this decision “sensible” in light of the cases holding that“participation in an internal employer investigation not connected with a formal EEOCproceeding does not qualify as protected activity under the participation clause.” Id.

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co-worker’s account. The Court concluded that “the circumstances surrounding her questioningmay very well have caused” Ms. Tennort to conclude that the conduct at issue violated Title VII.Id. at 244.

In Lord v. High Voltage Software, Inc., 839 F.3d 556 (7th Cir. 2016), the Seventh Circuitheld that a male employee’s complaints to his human resources department that his co-workerswere teasing him about a supposed romantic interest in a female co-worker was not protectedactivity because “they did not concern the type of conduct that Title VII prohibits.” Id. at 563.Although the Court denied Mr. Lord’s claim, it recognized, “A retaliation claim isn’t doomedsimply because the complained-of conduct was not in fact an unlawful employment practice;rather, the plaintiff must have “a sincere and reasonable belief that he is opposing an unlawfulpractice. The objective reasonableness of the [plaintiff’s] belief is not assessed by examiningwhether the conduct was persistent or severe enough to be unlawful, but merely whether it fallsinto the category of conduct prohibited by the statute. That determination requires us to askwhether the complained-of conduct entailed a motive that Title VII prohibits.” Id. (internalcitations omitted). In other words, it is the nature of the harassing conduct, not its severity orfrequency that determines whether the complaint is protected activity. The Court determined,“although Lord’s complaints concerned workplace banter and conduct that had sexual overtones,no evidence suggests that he was harassed because of his sex.” Id. Without evidence of aprohibited motive, Lord’s belief that he was complaining about sexual harassment, thoughperhaps sincere, was objectively unreasonable. The Court found that Lord’s retaliation claimfailed for lack of evidence that he engaged in protected activity. Id.

4. Special Opposition Circumstances Covered By the Guidance

a) Opposition to Harassing Conduct That Does Not YetConstitute a Hostile Work Environment

The EEOC recognized that the current opposition clause case law is causing employeesto be caught in an untenable catch-22: either complain to the employer about offensive conductexperienced or witnessed before it becomes severe or pervasive (taking the risk that the employerwould be permitted to fire her for complaining), or wait to complain until the harassment is sosevere or pervasive that she is certain she will be protected from retaliation (taking the risk offurther harm, and that her failure to complain sooner will relieve the employer of liability even ifa court later finds there was a hostile work environment). Id. at 17. In response, the 2016guidance articulates two interpretations of the opposition clause that would eliminate the catch-22.

First, harassing conduct that does not rise to the level of being severe or pervasive is stillprotected opposition. The Guidance states, “even reporting an isolated single incident ofharassment is protected opposition if the employee reasonably believes that a hostile workenvironment is in progress, with no requirement for additional evidence that a plan is in motionto create such an environment or that such an environment is likely to occur.” Id. at 17-18.

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Second, the EEOC clarifies that the act of resisting sexual advances or intervening toprotect others is protected activity under the opposition clause. For example, an employee whorebuffs her supervisor’s advances or tells him to leave her alone would be protected fromretaliation under the opposition clause without further analysis. Guidance at 23.

b) The Manager’s Rule: Who Is Protected From Retaliation ForOpposition?

Some courts have adopted a “manager’s rule” that requires employees in management-level positions to “step outside” of their management role and assume a position that is adverseto the employer to engage in protected activity. The manager’s rule stemmed from Fair LaborStandards Act jurisprudence and addressed “a concern that, if counseling and communicatingcomplaints are part of a manager's regular duties, then ‘nearly every activity in the normal courseof a manager's job would potentially be protected activity,’ and ‘[a]n otherwise typical at-willemployment relationship could quickly degrade into a litigation minefield.’” DeMasters v.Carilion Clinic, 796 F.3d 409, 421 (4th Cir. 2015)(quoting Hagan v. Echostar Satellite, L.L.C.,529 F.3d 617, 628 (5th Cir. 2008).

In DeMasters, the Fourth Circuit Court of Appeals analyzed the manager’s rule at lengthand decided that the manager’s rule should not apply to retaliation claims under Title VII.However, in doing so, it noted that it joined the only other court of appeals to do so in aprecedential opinion -- the Sixth Circuit in Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir.2000). As the DeMasters court also noted, its opinion went the opposite way of at least fiveCourts of Appeals and a number of district courts who acknowledged the manager’s rule in TitleVII cases. See DeMasters, 796 F.3d at 421-24 (comparing Johnson v. Univ. of Cincinnati, 215F.3d 561 (6th Cir. 2000), against Brush v. Sears Holdings Corp., 466 F. App'x 781, 782 (11thCir. 2012); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010); Weeks v.Kansas, 503 F. App'x 640, 642 (10th Cir. 2012); EEOC v. HBE Corp., 135 F.3d 543, 554 (8thCir. 1998); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 628 (5th Cir. 2008); Rice v. SpinxCo., No. 10-1622, 2012 U.S. Dist. LEXIS 27950, 2012 WL 684019, at *5 (D.S.C. Mar. 2, 2012);Hill v. Belk Stores Servs. Inc., No. 06-398, 2007 U.S. Dist. LEXIS 79239, 2007 WL 2997556, at*1 (W.D.N.C. Oct. 12, 2007)).

Interestingly, in its analysis, the DeMasters court missed the Second Circuit Court ofAppeals opinion in Littlejohn v. City of New York, 795 F.3d 297, 318 (2d 2015), issued just sevendays before it. In Littlejohn, the court took a hybrid approach to the manager’s rule because itwas unclear to that court whether Crawford superseded the manager’s rule:

To the extent an employee is required as part of her job duties to report orinvestigate other employees' complaints of discrimination, such reportingor investigating by itself is not a protected activity under § 704(a)'sopposition clause, because merely to convey others' complaints of

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discrimination is not to oppose practices made unlawful by Title VII. Butif an employee -- even one whose job responsibilities involve investigatingcomplaints of discrimination -- actively ‘support[s]’ other employees inasserting their Title VII rights or personally ‘complain[s]’ or is ‘critical’about the "discriminatory employment practices" of her employer, thatemployee has engaged in a protected activity under § 704(a)'s oppositionclause.

Thus, there is circuit-specific ambiguity in the federal courts regarding whether themanager’s rule applies to retaliation cases and in what way.

Unlike the ambiguity in the courts, the EEOC’s guidance expressly rejects the applicationof the manager’s rule to opposition claims and makes clear that all communications aboutpotential EEO violations are protected, including communications advising an employer on howto engage in EEO Compliance. Guidance 20. This is true regardless of whether thecommunication comes from managers, human resources personnel and EEO advisors. Id. at 19.However, these individuals must still follow the same requirements as any other employeealleging retaliation under the opposition clause including that the manner of opposition must bereasonable, and the opposition must be based on a reasonable good faith belief that the opposedpractice is unlawful. Id. at 20.

The guidance takes no express position on whether the manager’s rule should apply toparticipation.

c) Other Types of “Opposition”

Finally, in addition to communications about potential EEO violations, the EEOC’s non-exhaustive list of opposition examples includes a few other protected activities, such as passiveresistance, requesting reasonable accommodation for a disability or religion and discussingcompensation.

Passive resistance refers to acts that allow others to express opposition, such as refusingto implement a directive to interfere with employee complaints. In the guidance, the EEOC usesthe example of a supervisor refusing to carry out his management’s instruction to dissuadesubordinates from filing discrimination complaints.

Requests for disability and religious accommodation are protected by Title VII and theADA respectively, in addition to state laws. Therefore, by logical extension, individuals makingaccommodation requests are protected against retaliation for making such requests, even if theindividual is not literally participating in a complaint process or opposing discrimination. For arequest for accommodation to be sufficient it must be direct and specific enough to give theemployer notice that the employee needs a special accommodation or wants assistance for his or

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her disability, though the request need not specifically use the words “reasonableaccommodation.” See Foster v. Mt. Coal Co., LLC, 830 F.3d 1178, 1188 (2016) (quoting Taylorv. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)); see Zivkovic v. S. Cal. Edison Co.,302 F.3d 1080, 1089 (9th Cir. 2002) ("An employee is not required to use any particularlanguage when requesting an accommodation but need only inform the employer of the need foran adjustment due to a medical condition." (quotation marks omitted)).

Like employees requesting accommodations, various state and federal antidiscriminationlaws protect employees discussing compensation, particularly employees of federal contractorscovered by Executive Order 11246 (as amended by Executive Order 13665). Additionally,according to the EEOC, a pay secrecy policy or other employer action prohibiting the discussionof compensation may impede knowledge of discrimination and deter activity protected by theEqual Pay Act. Therefore, in addition to the fact that complaining about pay disparity isprotected activity, the EEOC takes the position that other compensation discussions may beprotected activity as well.

III. ADVERSE ACTION

To establish a prima facie retaliation, next a plaintiff must show she was subjected to anadverse employment action. Porter v. Houma Terrebonne Housing Authority Bd. Of Comrs.,810 F.3d 940, 945 (5th Cir. 2015).

It is well established that work-related actions such as denial of promotion, refusal tohire, removal of supervisory responsibilities, demotion, suspension, discharge, and denial of jobbenefits constitute adverse action for purposes of establishing retaliation. Geleta v. Gray, 645F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for jury existed as to material adversitywhen, among other things, plaintiff went from supervising 20 employees to supervising none),and Burke v. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer's motion forsummary judgment on retaliation claim challenging removal of supervisory duties from"supervisory computer systems analyst"); Higbie v. Kerry, 605 F. App'x 304, 308-11 (5th Cir.2015) (ruling that employer's moving of employee's desk and modifying his role were notmaterially adverse actions because employee had only an intermittent supervisory role in anyevent); Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (rulingthat terminating plaintiff sooner than planned due to her protected activity was actionable asretaliation). Guidance at 14. See also Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3dCir. 1998)(change in shift could be a materially adverse employment action in claim for unlawfulretaliation under the ADA); Vega v. Hempstead Union Free School District, 801 F.3d 72, 91 (2dCir. 2015)(assigning a teacher a higher percentage of students with excessive absenteeism,reducing salary temporarily by erroneously deducting for sick time, failing to notify the teacherof a curriculum change, and issuing a negative performance evaluation could dissuade areasonable employee from making or supporting a charge of discrimination).

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In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court resolved adisagreement between the circuits regarding “whether the challenged [adverse] action has to beemployment or workplace related and about how harmful that action must be to constituteretaliation.” 126 S. Ct. 2405, 2410 (2006). The Supreme Court held “that the anti-retaliationprovision, unlike the substantive provision, is not limited to discriminatory actions that affect theterms and conditions of employment,” and “…the antiretaliation provision extends beyondworkplace-related or employment-related retaliatory acts and harm.” Id. at 2412-14.

Employees are protected from actions that a reasonable employee would consider“materially adverse” in context and might dissuade an employee from engaging in protectedactivity; however, an employee’s report of discriminatory conduct cannot immunize theemployee from “petty slights or minor annoyances” that occur at work. Burlington Northern,126 S. Ct. at 2415. In Burton v. Board of Regents of University of Wisconsin System, 851 F.3d690, 697 (7th Cir. 2017), the Court held that pressure to drop a lawsuit and unfulfilled threats ofdiscipline are not materially adverse actions for the purpose of a Title VII retaliation claim.

In contrast, the refusal to allow an employee to rescind a resignation could be materiallyadverse action for purposes of a Title VII retaliation claim. In Porter, an employee gave hernotice of resignation, to be effective after two months. 810 F.3d at 943. After a grievancehearing, the employer required anti-harassment training, and afterwards, the employee tried torescind the resignation, but her employer decided not to accept the rescission. The Fifth Circuitheld that in light of Burlington Northern, and in context, a reasonable worker might expect heremployer to accept the rescission and would have been dissuaded from making a charge ofharassment. Id. at 948.

The EEOC takes a broad view of the actions that it considers materially adverse. TheEEOC and courts have opined that harassing conduct may dissuade employees from participatingin protected activity and constitute retaliatory harassing conduct even if it is not severe orpervasive. See, e.g., Martinelli v. Penn Millers Ins. Co., 269 F. App'x 226, 230 (3d Cir. 2008)(ruling that after Burlington Northern, an employee claiming "retaliation by workplaceharassment" is "no longer required to show that the harassment was severe or pervasive"); EEOCv. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Wis. Feb. 17, 2011)(holding that reasonable jury could conclude employees were subjected to unlawful retaliationunder Burlington Northern standard when human resources supervisor verbally harassed them byscreaming and pounding his fists on the table while threatening termination if they filedgrievances). Guidance at 16.

The EEOC Guidance also details examples of materially adverse action that is not work-related including disparaging an employee to others or in the media, making false reports to

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government authorities, filing a civil action, threatening reassignment, being verbally orphysically abusive, requiring re-verification of immigration or work status, terminating a uniongrievance, and taking or threatening to take a materially adverse action against a close familymember. See Thompson v. North American Stainless, LP, 562 U.S. 170 (2011); Watford v.Jefferson County Public Schools, 870 F.3d 448 (6th Cir. 2017) (a collective bargainingagreement’s provision requiring grievance proceedings to be held in abeyance upon the filing ofan EEOC charge is a materially adverse action); Greengrass v. International Monetary SystemsLtd., 776 F.3d 481 (7th Cir. 2015) (identifying a former employee as an EEOC claimant by namein publicly available SEC filing when others were not identified by name could be a materiallyadverse employment action); Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012) (ruling that astatement to the press that employee had stolen paychecks could be found to be materiallyadverse action, because "though not affecting the terms or conditions of Lore's employment, [thestatement] might well have dissuaded a reasonable police officer from making a complaint ofdiscrimination"); Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73 (1st Cir. 2007) (affirming ajury verdict in plaintiff's favor, the court held that comments by a union president on televisionprogram regarding plaintiff being unfit for her job and implying she would pay a price for herdiscrimination claim constituted retaliation); EEOC v. Restaurant Co., 490 F. Supp. 2d 1039 (D.Minn. 2007) (denying summary judgment for the employer, the court ruled that the timing of ahuman resources director asking plaintiff to submit valid I-9 documentation two days afterreporting sexual harassment could be found by a jury to support an inference of retaliatorymotive for her subsequent termination). Guidance at 14-15. .

Finally, the anti-retaliation protections extend to individuals who fall within anemployee’s zone of interests. Thompson v. North American Stainless, LP., 131 S. Ct. 863(2011). In Thompson, the Supreme Court held that “a reasonable worker might be dissuadedfrom engaging in protected activity if she knew that her fiancé [who worked for the sameemployer] would be fired after she engaged in protected activity.” Id. at 868. The Court alsodetermined that Thompson fell “within the zone of interests protected by Title VII,” and thus hadstanding to sue for retaliation in violation of Title VII after Thompson allegedly was fired inretaliation for his fiancé’s charge. Id. at 870.

IV. CAUSATION

The new EEOC guidelines on retaliation reflect that the most significant doctrinaldevelopment in recent years with respect to a claim’s causation element came in University ofTexas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). There, the SupremeCourt held that a Title VII plaintiff must prove that the employer’s animus towards her protectedactivity was a “but for” cause of the adverse action she suffered. The Nassar opinion was itself

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an extension of the Court’s previous decision in Gross v. FBL Financial Services, 557 U.S. 167(2009), an ADEA case dealing with statutory terms analogous to Title VII.

While Nassar and Gross answered important questions, they also created new ones.

A. The But for Causation Standard

1. The Supreme Court’s Adoption of the “But For” Standard For RetaliationClaims Under Title VII

In Nassar, the Court reasoned that there was a material difference between the wording of§ 2000-3(a)’s anti-retaliation provision and Title VII’s general prohibition of status-baseddiscrimination – namely, that the former used the generic term “because” to connect thediscrimination and the protected activity, whereas the latter made it a violation to discriminateeven when the protected activity was just a “motivating factor” for the action. In the Court’sview, the standard definition of “because” implies “but for” causation. “But for” causation, ofcourse, means that the animus was an indispensable factor in the employer’s decision, withoutwhich the retaliation would not have occurred. That is materially different from the “motivatingfactor” standard because – as the guidance notes – one can in theory be motivated to retaliateagainst an individual based, in part, on an impermissible animus without that animus being adecisive factor in the decision. Nassar was also notable for its repudiation of the then-applicableEEOC guidelines, which had endorsed the “motivating factor” standard. The Court declined togrant the guidelines Skidmore “persuasive deference” because the EEOC had not pursued thedefinitional and structural analysis that the Court favored.

2. The Current EEOC Guidance

The EEOC Guidance notes that following Nassar in “private sector and state and localgovernment retaliation cases under the statutes the EEOC enforces, the causation standardrequires the evidence to show that ‘but for’ a retaliatory motive, the employer would not havetaken the adverse action . . .” The “but for” standard does not require that the protected activitybe the "sole cause" of the materially adverse action. “There can be multiple ‘but for causes, andretaliation need only be a ’but for‘ cause of the materially adverse action in order for theemployee to prevail.” Guidance, citing Nassar and Burrage v. United States, 134 S. Ct. 881,888-89 (20).

B. Circuit Split on Application of But For Standard to the McDonnell-DoublasFramework

Nassar has also led to a circuit split concerning the application of the “but for” causerequirement to the McDonnell-Douglas burden-shifting framework. The Nassar Court described

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the “showing” that a retaliation plaintiff must make, but did not specify whether such a“showing” corresponded to both the burden of production and the burden of persuasion. Severalcircuit have since taken the position that in order make out a prima facie case, a retaliationplaintiff must offer evidence from which a reasonable jury might conclude that an employer’sdiscriminatory animus was the “but for” cause of the adverse action. See EEOC v. Ford MotorCo., 782 F.3d 753, 770 (6th Cir. 2015); Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014);Smith v. City of Ft. Pierce, 556 F. App’x 774, 778 (11th Cir. 2014). The opposing circuits holdthat to impose a “but for” standard on plaintiffs prior to the pretext stage obviates the entireMcDonnell-Douglas framework. In other words, a plaintiff who at the outset “can show thatretaliation was the real reason for the adverse employment action will necessarily be able toshow that the harm would not have occurred in the absence of – that is, but for – the defendant’sconduct.” Foster v. Univ. of Maryland – Eastern Shore, 787 F.3d 243, 252 (4th Cir. 2015)(internal citations and alterations omitted); accord Carvalho-Grevious v. Delaware State Univ.,851 F.3d 249, 258-59 (3d Cir. 2017); Feist v. Louisiana Dept. of Justice, 730 F.3d 450, 454 (5thCir. 2013). It is possible that this issue will be the next causation question the Supreme Courtwill take up.

C. The But For Standard And Cat’s Paw Analysis

Another ambiguity stemming from Nassar involves the “cat’s paw” doctrine. This theoryimports agency principles to the employment discrimination context. It makes an employervicarious liable when a non-decision-making employee with a retaliatory animus influences asuperior who has decision-making power to take an adverse action against a plaintiff victim.Prior to Nassar, the Supreme Court endorsed the cat’s paw theory in the context of a USERRAclaim in Staub v. Proctor Hospital, 562 U.S. 411 (2011). The Court held that the influencer musthave been “motivated” by an unlawful animus and intended an adverse action to result from hisnegative recommendation. In turn, that recommendation must have been a “proximate cause” ofthe decision-maker’s adverse action. There appears to be a consensus among circuit courts onhow to reconcile this language with Nassar. The “but for” cause requirement applies only to thesecond part of the Staub test, so that the “proximate” connection between the recommendationand the ultimate decision is replaced with a more rigorous “but for” connection. Zamora v. Cityof Houston, 798 F.3d 326, 332 (5th Cir. 2015) (Title VII); Sims v. MVM, Inc., 704 F.3d 1327,1336-37 (11th Cir. 2013) (ADEA); Seone-Vazquez v. Ohio State Univ., 577 F. App’x 418, 428(6th Cir. 2014) (Title VII). However, Nassar does not diminish a plaintiff’s ability to impute theinfluencer’s animus to the decision-maker. Zamora, 798 F.3d at 332. Nor does that case appearto heighten the standard for proving the initial motivation of the influencer himself.

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D. Application of Standards Other Than “But For”

1. Chevron Deference to Agency Application of Mixed Motive Standard inFMLA Cases

While we now know the meaning to ascribe to a statute’s use of the term “because,” we donot necessarily know how to interpret a statute where the causal language is absent. One mightread Nassar broadly so that, in those instances, the “but for” standard simply becomes thedefault. At least one circuit has taken a different approach. In Egan v. Delaware River PortAuthority, 851 F.3d 263 (3d Cir. 2017), the Third Circuit was faced with an FLMA retaliationclaim. The FMLA contains an interference provision, which the Department of Labor hadconstrued to create a retaliation cause of action with a “mixed-motive” causal standard. Applyinga Chevron analysis, the Third Circuit approved the DOL’s construction. The statute, it said, wassilent on the relevant standard. Further, the DOL’s interpretation was not arbitrary or capricious– and was indeed consistent with Congress’s goals in enacting the FMLA. Egan demonstratesthat there is still some room for agency regulations to craft causal standards, at least whereCongress has not already employed terminology that implicates a causation requirement.

2. The Guidance: Agency Application of the Motivating Factor Standard InFederal Sector Cases

Because statutory federal sector protections contain a "broad prohibition of 'discrimination'rather than a list of specific prohibited practices," requiring that employment "be made free fromany discrimination," including retaliation, in Title VII and ADEA cases against a federalemployer, retaliation is prohibited if it was a motivating factor. Gomez-Perez v. Potter, 553 U.S.474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnelactions affecting federal employees who are at least 40 years of age "shall be made free from anydiscrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. §2000e-16(a)(providing that personnel actions affecting federal employees "shall be made freefrom any discrimination" based on race, color, religion, sex, or national origin).

E. Proof of Causation And Defeating That Proof

The methods of proof discussed in the Guidance are not particularly new: “suspicioustiming, verbal or written statements, comparative evidence that a similarly situated employeewas treated differently, falsity of the employer's proffered reason for the adverse action, or anyother pieces of evidence which, when viewed together, may permit an inference of retaliatoryintent.” Thus, the plaintiff can prove causation by evidence creating “convincing mosaic” ofretaliatory intent. See, e.g., Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Aug. 19, 2016).

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Nor are the methods of rebutting the plaintiff’s evidence of causation particularly new: thatthe employer was unaware of the protected activity or had a legitimate non-retaliatory reason forits challenged action.

V. ADA INTERFERENCE

The ADA goes beyond other EEO statutes to prohibit not just “retaliation” but“interference” with the exercise or enjoyment of ADA rights. The statute expressly provides:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individualin the exercise or enjoyment of, or on account of his or her having exercised orenjoyed, or on account of his or her having aided or encouraged any otherindividual in the exercise or enjoyment of, any right granted or protected by thischapter.

42 U.S.C. § 12203(b). Importantly, an individual need not prove that they have a “disability” orare “qualified” to be protected from retaliation or interference under the ADA. An employer’s“interference” with ADA rights need not meet the “materially adverse standard” to be actionableunder the ADA. The EEOC Guidance provides the following examples of conduct that would beprohibited as ADA interference:

∂ Coercing an individual to relinquish or forego an accommodation to which he or she isotherwise entitled

∂ Intimidating an applicant from requesting an accommodation for the application processby indicating that such a request will result in the applicant not being hired;

∂ Threatening an employee with loss of employment or other adverse treatment if he doesnot “voluntarily” submit to a medical examination or inquiry that is otherwise prohibitedunder the statute;

∂ Issuing a policy or requirement that purports to limit an employee’s rights to invoke ADAprotections (e.g. a fixed leave policy that states “no exceptions will be made for anyreason”);

∂ Interfering with a former employee’s right to file an ADA lawsuit against the formeremployer by stating that a negative job reference will be given to prospective employersif the suit is filed; and

∂ Subjecting an employee to unwarranted discipline, demotion, or other adverse treatmentbecause he assisted a coworker in requesting reasonable accommodation.

Critically, “A threat does not have to be carried out in order to violate the interferenceprovision, and an individual does not actually have to be deterred from exercising or enjoying

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ADA rights in order for the interference to be actionable.” Questions and Answers: EnforcementGuidance or Retaliation and Related Issues, Question 19.

The case law interpreting the ADA’s anti-interference provision is limited. Brown v. Cityof Tucson, 336 F.3d 1181 (9th Cir. 2003), is the leading case. In Brown, the Ninth Circuit lookedto the Fair Housing Act, as well as the FMLA and NLRA, for guidance interpreting the ADA’santi-interference provision. 42 U.S.C. § 12203(b). Although the Ninth Circuit did not attempt todefine “interference” or “coercion” or “intimidation” under the statute, it reasoned that “[f]orwhatever else that provision may prohibit, it clearly makes it unlawful to “threaten … anyindividual in the exercise or enjoyment of … any right granted or protected by this statute.” Id. at1193 (emphasis in original). The court held that “the plain language of § 503(b) clearly prohibitsa supervisor from threatening an individual with transfer, demotion, or forced retirement unlessthe individual forgoes a statutorily protected accommodation.” Id. However, the threat alonedoes not create ADA liability. “An ADA plaintiff must also demonstrate that she has suffered ‘adistinct and palpable injury’ as a result of the threat.” Id. (internal citations omitted). “Thatinjury could consist of either the giving up of her ADA rights, or some other injury whichresulted from her refusal to give up her rights, or from the threat itself.” Id. (citing Bachelder v.Am. West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).

The Seventh Circuit recently embraced the Ninth Circuit’s ruling in Brown. In Frakes v. PeoriaSchool District No. 150, --- F.3d ---- , 2017 WL 4250079 (7th Cir. Sept. 26, 2017), the Courtapplied the FHA’s interference clause framework to establish the legal standard for an ADAinterference claim. Id. at *4. Accordingly, the Seventh Circuit held that “a plaintiff alleging anADA interference claim must demonstrate that: (1) she engaged in activity statutorily protectedby the ADA; (2) she was engaged in, or aided or encouraged others in, the exercise or enjoymentof ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered onaccount of her protected activity; and (4) the defendants were motivated by an intent todiscriminate.” Id. (citing Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir. 2009) (en banc)(providing the framework for an FHA interference claim).

VI. PRACTICAL GUIDANCE FOR EMPLOYERS

Employers are challenged by the legal obligation not to retaliate against employees whoparticipate or engage in protected activity, the desire to encourage employees to report conductbelieved to be in violation of employer policy, and the employees who attempt to avoidmanagement’s legitimate actions in response to poor performance or misconduct by allegingdiscrimination. The EEOC Guidance includes recommendations to employers “to minimize thelikelihood of retaliation violations,” which employers should review and consider implementing.Guidance at 24-25.

Employers should take a fresh look at their equal employment opportunity, anti-discrimination, anti-harassment, and disability accommodation policies to ensure that the policies

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prohibit retaliation, provide disciplinary action for retaliation, identify reporting mechanisms,and contain up to date language and provisions. Frequently, in anti-retaliation policies,employers promise to protect employees who make a “good faith” complaint of discrimination orharassment. Some policies even go a step further in that they indicate corrective action if anemployee makes a complaint in bad faith. Based on the EEOC’s guidance, employers should becautious in retaining a “good faith” condition in their anti-retaliation policy. Further, anemployer who disciplines or discharges an employee for making a complaint in bad faith does soat its own peril, increases the likelihood of costly and time consuming litigation, and takes therisk that a state agency, a judge or jury may find the action retaliatory. This, of course, has to bebalanced against the need to take action where the frequency of the employee’s bad faith internalcomplaints rises to a level of harassing another employee. While few employers still havepolicies prohibiting employees from discussing compensation because the National LaborRelations Act, Executive Order 11246 (as amended by Executive Order 13665) and various statelaws prohibit such policies, employers should consider reviewing their employee handbooks anddeleting any remaining prohibitions on such discussions. Employers may still haveconfidentiality policies that prohibit employees from disclosing the compensation information ofother employees where they have access to the information solely by virtue of their job duties.

The EEOC Guidance recommends training for managers, supervisors, and employeesregarding anti-retaliation and communications from leadership that it does not tolerateretaliation. Training is one important step in reducing actual and perceived retaliation.Managers and supervisors must understand the legal restrictions and the legal risk whendisciplinary or other action is considered after discrimination allegations. Similarly employeesshould understand the impact on how employers asses the credibility of discrimination whentheir reports are untimely or occur on the heels of disciplinary or other action.

After any complaint or report of discrimination, employers should remember tocommunicate and follow up with employees, managers, and supervisors. First, employees,managers, and supervisors should be reminded of the employer’s policies prohibiting retaliation,avenues for reporting possible retaliation or other policy violation, and resources available toanswer questions and provide advice. Second, management or human resources should beproactive about following up with employees and witnesses to find out whether there are anyconcerns about conduct that could be in violation of the employer’s policy such as inappropriateconduct or potential or perceived retaliation.

Finally, employers should “[c]onsider ensuring that a human resources or EEO specialist,a designated management official, in-house counsel, or other resource individual reviewsproposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons,” and to evaluate whether the actions may be perceived asretaliatory.