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Proposed EEOC Regulations on Workplace Retaliation Make Defending Retaliation Lawsuits More Difficult

    Employers should be aware of new proposed guidance from the EEOC on workplace retaliation issues, and their potential impact on the workplace and resulting litigation.  The proposed guidance issued by the EEOC, among other things, formally expands the scope of “protected activity” in which an employee can participate.  For example, the guidance provides that an employee has engaged in “protected activity” even if an internal harassment complaint falls “far short” of the severe and pervasive standard required to prove a hostile work environment.  The concern for employers in that the EEOC’s use of the phrase “far short” includes potentially any internal complaint of harassment.  The proposed guidance further provides that “broad or ambiguous complaints” of unfair treatment can be protected activity “if the complaint reasonably would have been interpreted as opposition to employment discrimination.”  The EEOC appears explicitly to be placing an additional burden on employers to examine an employee’s complaint to rule out any possibility at all that the complaint could be one for discrimination before taking an adverse employment action.     

    The proposed guidance is concerning in other areas as well, including its discussion of the quantum of evidence a charging party will be required to offer to support an inference of retaliatory animus (broadly described in the guidance as a “convincing mosaic of circumstantial evidence”).    Although the proposed guidance was made public only recently, and there will be opportunity for comment through the end of this month, now more than ever employers must remain vigilant when considering adverse employment actions against employees who have made internal complaints involving workplace issues, even if those complaints don’t obviously implicate unlawful discrimination or harassment.

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