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This transmittal covers the issuance of Section 8 of the new Compliance Manual on "Retaliation". The section provides guidance and instructions for investigating and analyzing claims of retaliation under the statutes enforced by the EEOC.
EFFECTIVE DATE:
Upon Receipt
DISTRIBUTION:
EEOC Compliance Manual holders
OBSOLETE DATA:
Section 614 of Compliance Manual, Volume 2
FILING INSTRUCTIONS:
This is the first section issued as part of the new Compliance Manual. Section 614 of the existing Compliance Manual should be discarded.
/s/
Paul M. Igasaki Chairman
Last Update: 7/6/2000
0-0 | CHARGE-PROCESSING OUTLINE: OVERVIEW
In processing a charge involving an allegation of retaliation, consider the following issues (for a detailed discussion of each issue, see accompanying chapter at referenced pages):
There are three essential elements of a retaliation claim:
1) protected activity -- opposition to discrimination or participation in the statutory complaint process
1. Did the charging party (CP) explicitly or implicitly communicate to the respondent (R) or another covered entity a belief that its activity constituted unlawful discrimination under Title VII, the ADA, the ADEA, or the EPA?
- If the protest was broad or ambiguous, would CP's protest reasonably have been interpreted as opposition to such unlawful discrimination?
Did someone closely associated with CP oppose discrimination?
2. Was the manner of opposition reasonable? manner of opposition so disruptive that it significantly interfered with R's legitimate business concerns?
- If the manner of opposition was not reasonable, CP is not protected under the anti-retaliation clauses.
3. Did CP have a reasonable and good faith belief that the opposed practice violated the antidiscrimination laws?
- If so, CP is protected against retaliation, even if s/he was mistaken about the unlawfulness of the challenged practices.
- If not, CP is not protected under the antiretaliation clauses.
B. Did CP participate in the statutory complaint process?
Did CP or someone closely associated with CP file a charge, or testify, assist, or participate in any manner in an investigation, proceeding, hearing, or lawsuit under the statutes enforced by the EEOC?
- If so, CP is protected against retaliation regardless of the validity or reasonableness of the original allegation of discrimination.
- CP is protected against retaliation by a respondent for participating in statutory complaint proceedings even if that complaint involved a different covered entity.
0-2 | CHARGE-PROCESSING OUTLINE: ADVERSE ACTION
Did R subject CP to any kind of adverse treatment?
- Adverse actions undertaken after CP's employment relationship with R ended, such as negative job references, can be challenged.
- Although trivial annoyances are not actionable, more significant retaliatory treatment that is reasonably likely to deter protected activity is unlawful. There is no requirement that the adverse actionmaterially affect the terms, conditions, or privileges of employment.
1. Did R official admit that it undertook the adverse action because of the protected activity?
2. Did R official express bias against CP based on the protected activity? If so, is there evidence linking that statement of bias to the adverse action?
- Such a link would be established if, for example, the statement was made by the decision-maker at the time of the challengedaction.
If there is direct evidence that retaliation was a motive for the adverse action, "cause" should be found. Evidence as to any additional legitimate motive would be relevant only to relief, under a mixed-motives analysis.
1. Is there evidence raising an inference that retaliation was the cause of the adverse action?
- Such an inference is raised if the adverse action took place shortly after the protected activity and if the decision-maker was aware of the protected activity before undertaking the adverse action.
- If there was a long period of time between the protected activity and the adverse action, determine whether there is other evidence raising an inference that the cause of the adverse action was retaliation.
2. Has R produced evidence of a legitimate, nondiscriminatory reason for the adverse action?
3. Is R' s explanation a pretext designed to hide retaliation?
- Did R treat similarly situated employees who did not engage in protected activity differently from CP?
- Did R subject CP to heightened scrutiny after s/he engaged in protected activity?
If, on the basis of all of the evidence, the investigatoris persuaded that retaliation was the true reason for the adverse action, then "cause" should be found.
0-4 | CHARGE-PROCESSING OUTLINE: SPECIAL REMEDIES ISSUES
A. Is it appropriate to seek temporary or preliminary relief pending final disposition of the charge?
1. Is there a substantial likelihood that the challengedaction will be found to constitute unlawful retaliation?
2. Will the retaliation cause irreparable harm to CP and/or the EEOC?
- Will CP likely incur irreparable harm beyond financial hardship because of the retaliation?
- If the retaliation appears to be based on CP's filing of a prior EEOC charge, will that retaliation likely cause irreparable harm to EEOC's ability to investigate CP's original charge of discrimination?
If there is a substantial likelihood that the challengedaction will constitute retaliation and if that retaliation will cause irreparable harm to CP and/or the EEOC, contact the Regional Attorney about pursuing temporary or preliminary relief.
B. Are compensatory and punitive damages available and appropriate?
Compensatory and punitive damages are available for retaliation claims under all of the statutes enforced by the EEOC, including the ADEA and the EPA. Compensatory and punitive damages for retaliation claims under the ADEA and the EPA are not subject to statutory caps.
Punitive damages often are appropriate in retaliation claims under any of the statutes enforced by the EEOC.
Congratulations! You're now booked up on Section 0 of Chapter 8: Retaliation from the EEOC's Compliance Manual!
You might need to reference it during your pursuit of justice.
