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The Big 3: Three Major Takeaways from the EEOC's New Guidance on Retaliation Claims

A lot has changed since the EEOC last updated its stance on retaliation claims 18 years ago. Most notably, retaliation claims have skyrocketed. In fact, the number of retaliation claims filed with the EEOC has increased 119% since 1998. Retaliation claims are so common that they accounted for nearly 45% of all EEOC charges filed in 2015. It is against this backdrop that the EEOC issued its most recent enforcement guidance on retaliation. Here are three big takeaways for employers:

1. The new guidance provides an expansive view of what constitutes a "materially adverse action".

Arguably the most prominent portion of the guidance can be found in the section addressing the various types of materially adverse actions that can trigger a retaliation claim. Most employers know the obvious types of adverse action: refusal to hire, denial of promotion, demotion, suspension, and discharge. The guidance goes beyond these generally understood actions and provides a number of work-related actions that may constitute a materially adverse action: work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, transfers to less prestigious or desirable work or work locations, and any other type of adverse treatment that under the circumstances may dissuade a reasonable person from engaging in a protected activity. The guidance also provides that a materially adverse action does not have to have a tangible effect on the individual's employment and can even occur completely outside of work as long as it might dissuade a reasonable person from engaging in a protected activity.

2. The new guidance confirms the "but-for" causation standard for private employers.

The guidance also confirmed that a successful retaliation claim must show that "but for" the individual's engagement in a protected activity (or phrased differently, but for the employer's retaliatory motive), the employer would not have taken the materially adverse action. The but-for causation standard is tougher for individuals to meet than the "motivating factor" standard, which can be met even if the employer would have taken the same action absent a retaliatory motive.

3. The guidance provides a "promising practices" list.

The guidance provides a list of five "promising practices" that the EEOC believes will reduce the risk of engaging in retaliation. The promising practices include: 1) maintaining a written anti-retaliation policy; 2) training all managers, supervisors, and employees on the anti-retaliation policy; 3) providing advice and individualized support for those who could be in the position to retaliate and those who could be in the position to be retaliated against; 4) proactively following up after an individual engages in protected activity; and 5) reviewing employment actions to ensure compliance with the laws on retaliation.

The EEOC's retaliation guidance update comes as no surprise given the prominence of retaliation claims in EEOC charge filings. That said, employers are now on notice regarding the EEOC's expansive view of what constitutes a materially adverse action. As a result, employers must be mindful and extra careful when taking an action against an employee that has engaged in a protected activity.

Questions? Contact Attorney Ryan Young in our Chicago office at (312) 629-9300 or by email at ryyoung@wesselssherman.com

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