"This article originally was published the North Carolina Employment Law Letter, which is edited by Womble Carlyle attorney Richard Rainey."

According to the Equal Employment Opportunity Commission (EEOC), in 2015, retaliation claims made up to 45 percent of all private-sector charges filed with the agency.  In recognition of the growth in the number of these claims and the fact that the EEOC hasn’t updated its guidance on retaliation since 1998, it released a proposed enforcement guidance on retaliation claims in January.

"What the Guidance Says"

The guidance sets out the standards for proving retaliation under the various civil rights laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Equal Pay Act (EPA).  To establish a claim of retaliation, the employee must show that: (1) She engaged in protected activity either by participating in equal employment opportunity activity or by opposing discrimination; (2) The employer took an adverse action against her; and (3) There is a casual connection between the protected activity and the adverse action.

The guidance explains each of these elements and provides examples of conduct that is and isn’t retaliatory in the view of the EEOC.  The guidance also makes clear that an employee nee not proved an underlying discrimination claim to be successful on a retaliation claim.

The EEOC states an “employer will prevail if it produces credible unrebutted evidence that the adverse action was based on a legitimate reason: (e.g., excessive absenteeism) and “the employee cannot show other evidence of retaliation.”

On the other hand, the EEOC states that an employee can “discredit” the employer’s explanation and “demonstrate a causal connection between prior protected activity and the challenged adverse action” by presenting a “convincing mosaic” of “circumstantial evidence that would support” an inference of retaliatory animus.  According to the EEOC, the “mosaic” may include the timing of the adverse action, oral or written statements, comparative evidence, and any other “bits and pieces” from which an inference of retaliatory intent could be drawn.

"Best Practices"

The EEOC provides in the guidance what it calls “best practices” for employers to prevent and address retaliation claims.  These best practices include maintaining a written, plain-language retaliation policy that features a complaint procedure and reviewing all policies to make sure they don’t include language that might deter employees from reporting suspected discrimination or harassment.

Other best practices include training on the policy for all, providing antiretaliation information and advice to everyone involved in an investigation of a discrimination complaint, and a proactive follow-up after a complaint is made to ensure any concerns about retaliation are addressed immediately.

Finally, the EEOC recommends that HR or in-house legal counsel review proposed employment actions to make sure they are based on legitimate nondiscriminatory and nonretaliatory reasons.