Skip to Page Content

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.


    Please contact for more information:

    © 2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

    The information appearing on this site is for general informational purposes only and is not intended to provide legal advice to any individual or entity. New York State Society for Human Resource Management, Inc. (NYS SHRM)  urges you to consult with your own legal advisor before taking any action based on information appearing on this site or any site to which it may be linked.

    NYS SHRM expressly disclaims liability for errors and omissions in the contents of this site. No warranty of any kind, implied, expressed, or statutory, is given with respect to the contents of this site or its links to other Internet resources.

    Inclusion of material or links on this site from any firm, corporation or entity does not constitute and should not be interpreted as an endorsement, recommendation, or favoring by NYS SHRM of either the firm, corporation or entity or the products/services it may offer.