It’s the most common employment law claim . . . retaliation. In 2015, 44.5% of the total EEOC charges were based on retaliation, which exceeded even race-based charges of discrimination. So it is not surprising that the EEOC decided to weigh in. On August 29, 2016, the EEOC issued its final 76-page Enforcement Guidance on Retaliation and Related Issues, the first retaliation guidance provided by the EEOC since 1998.
Of course, this guidance (as with previous guidance on pregnancy discrimination) is not without controversy. In general, an employee claiming retaliation has to show that:
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The employee engaged in a protected activity, like reporting harassment or objecting to perceived discrimination;
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There was an adverse employment action, like being terminated or demoted; and,
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There is a “causal connection” between the protected activity and the adverse employment action.
The EEOC published the proposed Guidance for public input on January 21, 2016, and received approximately sixty-five comments during the one-month comment period. One of the heated issues among the commenters was the causation standard, and the EEOC’s expansive concept of causation – the connection between the protected activity and the adverse employment action.
The U.S. Supreme Court has ruled that in retaliation cases, a plaintiff employee must show that the employer would not have taken the adverse action at issue “but for” a retaliatory motive. The “but for” standard typically involves the employee showing that the employer knew about the protected activity of the employee and that the adverse employment action occurred shortly thereafter. The EEOC guidance, however, states that an employee can establish “but for” causation by presenting a “convincing mosaic of circumstantial evidence,” including “bits and pieces from which an interference of retaliatory intent might be drawn.” Such “bits and pieces include suspicious timing, inconsistent explanations by the employer, and evidence of selective enforcement.
However, it still holds true, and the Guidance provides that no matter how many pieces of evidence are combined by the plaintiff, causation cannot be proven if the evidence shows that the challenged adverse action would have occurred anyway because of legitimate non-retaliatory reason.
Compass Point: Be prepared for the “convincing mosaic” argument and document clearly and consistently because a well-documented history of progressive discipline that began before the alleged protected activity is excellent evidence of the employer’s Legitimate Non-Retaliatory Reason for the challenged action.
