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Workplace Retaliation: Eeoc Proposes New Guidelines

The Equal Employment Opportunity Commission (EEOC) recently issued some proposed revisions to processing and investigating workplace retaliation charges, which would offer new protections to employees. Because retaliation claims continue to be the most common of all workplace discrimination charges (33,800 were filed in 2015), the new guidelines are sorely needed - especially since the retaliation guidance hasn't been updated since 1998.

Understanding the New EEOC Retaliation Guidelines

Retaliation Revisions Offer Ease to Employees Filing Charges

The EEOC's new retaliation guidelines could actually make it easier for employees to show that an employer retaliated against them.
In order for a workplace retaliation claim to be valid, an employee must show a "causal connection" between his or her participation in a protected activity, and an adverse action against him or her by an employer. While these guidelines had been indicated by the EEOC previously, the newly proposed retaliation guidelines broaden the definitions of causal connection, protected activity, and adverse action.

Definition of Causal Connection

Under the new guidance, an employee filing a claim can demonstrate a causal connection as a "convincing mosaic." This means that the employee or applicant would be able to present a valid case if he or she were to put together individual pieces of evidence that could combine to infer retaliatory intent by an employer.
The proposed guidelines by the EEOC also state that the evidence can be combined from actions taken over a course of several years of an employee's employment history.

Definition of Protected Activity

As for the definition of a protected activity, this behavior can be either direct (for example, an employee files a complaint) or indirect (for example, an employee supports a coworker's complaint). Under the EEOC's guidelines, these employee behaviors can be protected whether the claim is inaccurate or even untrue.
The EEOC also says that in order for these claims to be protected under law, opposition from an individual only has to be based on the employee's reasonable good-faith belief that his or her employer's behaviors violate employee rights under the law.

Definition of Adverse Action
The EEOC's new retaliation guidelines state that an adverse action is any behavior that could deter a reasonable individual from engaging in protected activity. The negative employer behavior also doesn't have to affect a worker's employment status, plus need not actually deter an employee or applicant from engaging in a protected activity. The adverse action simply has to have the potential to do so.

New EEOC Retaliation Guidelines Are Not Finalized

While the new guidelines haven't been finalized, employees should know that it may soon be easier to file retaliation charges against their employers. Currently, the EEOC says that a valid retaliation claim must include three things:

  1. An employee's participation in a protected activity.
  2. An adverse action taken against an employee by an employer.
  3. A causal connection between the adverse action and protected activity.

As previously mentioned, these definitions may soon be broadened, so if believe that your employer has already unlawfully retaliated against you, it may be wise to start gathering evidence to prove your case.

You can read the EEOC's proposed retaliation guidelines here: Proposed Enforcement Guidance on Retaliation and Related Issues

Even with anti-retaliation laws in place at the California state and federal levels, workplace retaliation still occurs. If you feel your employer has retaliated against you, we're here to fight for your rights. Contact the California workplace retaliation attorneys at Hennig Ruiz today for a free consultation.

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