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EEOC raises the stakes with retaliation rule update

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The U.S. Equal Employment Opportunity Commission's proposed update of its “woefully outdated” guidance on workplace retaliation would put a greater burden on employers to disprove such allegations.

Retaliation already is a major issue for employers, with the 39,757 charges brought in fiscal 2015 accounting for 44.5% of all charges filed by the EEOC. As recently as 2007, retaliation charges accounted for just one-third of all charges filed.

Although the guidance has not been finalized, legal experts say they expect the final advice to closely resemble the 73-page proposal that the EEOC issued in January.

Carol R. Miaskoff, Washington-based acting associate legal counsel at the EEOC, said the retaliation advice was last updated in 1998 and that seven Supreme Court decisions since then have made “our old guidance woefully outdated.”

These rulings have further developed the law on retaliation under EEOC-enforced laws, such as by holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act, as in 2011's Kasten v. Saint-Gobain Performance Plastics Corp.

The proposal analyzes and discusses the three elements of a retaliation claim — protected activity, adverse job actions and the causal connection between the two — and suggests best practices to avoid such claims.

But legal experts say the EEOC's proposal stretches the current interpretation of the law. For instance, it says lodging an internal complaint is protected activity even in the absence of a parallel EEOC charge, which observers say is contrary to rulings by several courts.

The guidance is “obviously an indication by the EEOC that they're going to take the most expansive view possible” of the issue, said Kristin E. Michaels, a partner at McDermott Will & Emery L.L.P. in Chicago.

“The EEOC is creating a narrative as to what it thinks the retaliation regulations should say, not what they currently say,” said Kevin M. Kraham, a shareholder at Littler Mendelson P.C. in Washington. “It effectively shifts the burden of proof in retaliation cases to employers to disprove a retaliatory motive ... it's difficult, if not impossible, to disprove a negative.”

“It more and more moves the employer away from at-will employment, and is going to require more documentation as to the reasons for termination,” said Nathaniel Glasser, a partner at Epstein Becker & Green P.C. in Washington.

“The agency is using this guidance to try and set the tone for the unsettled areas of the law,” said Meredith C. Swartz, an associate at Ballard Spahr L.L.P. in Philadelphia.

The degree to which the courts are likely to give the EEOC deference on the issue will vary, observers say.

While the guidance is not binding, “it's going to vary court to court, circuit to circuit,” said H. Bernard Tisdale, office managing shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Charlotte, North Carolina. “It's also going to depend on the facts of each particular situation. I don't see a wholesale change across the country just simply based on this guidance.”

Mr. Glasser said that still would pose challenges for employers trying to defend themselves.

“Even if the circuit in which the complaint is raised doesn't ultimately agree with the EEOC guidance, the employer might be stuck in a position where the (EEOC) investigator isn't aware that that's how the circuit views that issue, or doesn't care,” requiring the employer to mount a defense, he said.

Some observers believe the guidance could lead to more retaliation claims filed against employers.

However, Harris M. Mufson, senior counsel at Proskauer Rose L.L.P. in New York, said, “This will just change the manner in which the EEOC investigates and pursues retaliation claims.”

The EEOC's Ms. Miaskoff said no date has been set to issue the final guidance.

“We essentially consider all the public input, and then the commission decides what kind of changes it wants to make, if any, and then they will vote on a final version of the document,” she said.

In the interim, employers should “take every complaint very seriously, they should investigate, and obviously to the extent there is a situation that arises where you need to take an adverse employment action ... just make sure the circumstances justify it and there are legitimate, nonretaliatory reasons for taking it,” said Christopher G. Gegwich, a partner at Nixon Peabody L.L.P. in Jericho, New York.

“Ultimately, what the guidance will do is require employers to be much more adept at documenting negative performance issues or other problems by an employee in the workplace, so they can make sure that after the fact, when an adverse decision is made,” they can show it was not based on conduct such as participating in an internal investigation, Mr. Glasser said.

“In the end, you're throwing it in front of a jury, and the jury is not going to be concerned about due process,” said Mr. Tisdale. The jury's concern will be, “Was the employer fair? That's going to be the ultimate arbiter in that situation. Don't rely on legalese,” he said.