EEOC 2016 Update - Retaliation Guidance; LGBT Rights; and Pursuit of Systemic Claims

The Equal Employment Opportunity Commission’s (“EEOC”) 2016 initiatives include, but are not limited to, soliciting comment from employers on proposed retaliation guidance; emphasizing lesbian, gay, bisexual, and transgender (“LGBT”) employee rights as sex discrimination; and focusing on creating a national law firm model to allow the EEOC to pursue more systemic claims.[1]  This article analyzes the agency’s 2016 initiatives and its effects on employers.

A.        Employer Input on Proposed Retaliation Guidance Due By February 24, 2016.

The EEOC is accepting employer comments on its proposed retaliation guidance until February 24, 2016.[2]  This is a change from the years where the EEOC issued guidance without employer comment.[3]  The EEOC’s guidance is timely given that retaliation claims make up approximately 45 percent of private sector EEOC claims, and the last enforcement guidance on the subject was in 1998.[4]  To submit comments, employers should go to www.regulation.gov.

Key areas to look for in the proposed guidance include the broad interpretation of what constitutes both retaliation and protected activity.  Following the Burlington Northern and Santa Fe Railway v. White case,[5] the anti-retaliation provision of Title VII of the Civil Rights Act’s (“Title VII”) is broader than the Act’s anti-discrimination provision, and is not limited to discriminatory actions affecting the terms and conditions of employment, which will be reflected in the proposed guidance.  Further, the proposed guidance expands protected activity to include participation in internal EEO complaints made within the employer’s complaint process, or to management or human resources, prior to filing a discrimination charge.  The proposed guidance also includes the University of Texas Southwestern Medical Center v. Nassar[6] holding requiring an employee to show that the employee’s protected activity was the “but-for” cause of the adverse employment action in order to prevail on a retaliation claim.  The proposed guidance reflects other recent Supreme Court decisions, allowing for either oral or written complaints to be considered protected activity,[7] and for “third party retaliation” (i.e. where an employee suffers an adverse employment action based on another’s protected activity).[8]  Finally, the proposed guidance also includes examples of best practices, including: (1) maintaining a written, plain language anti-retaliation policy; (2) training all employees on the employer’s anti-retaliation policies; and (3) reviewing adverse actions to ensure EEO compliance. 

B.        EEOC Finds LGBT Protections Under Sex Discrimination.

The EEOC will continue to emphasize advancing its position that Title VII’s ban against sex discrimination includes discrimination on the basis of sexual orientation.[9]  While some federal courts have permitted LGBT employees to proceed under a gender stereotyping theory and some states have anti-discrimination laws protecting employees from discrimination on the basis of their sexual orientation, Title VII does not expressly prohibit discrimination on the basis of sexual orientation.[10]  In January, the EEOC filed amicus briefs in two separate Eleventh Circuit cases arguing that discrimination based on sexual orientation is sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).[11]  Regardless of whether state law prohibits discrimination against LGBT employees, employers must be aware of the EEOC’s continued efforts to expand Title VII to include protection for employees based on their sexual orientation.

C.        EEOC to Pursue More Disparate Impact Cases Under National “Law Firm” Model.

A top EEOC priority is to promote a national law firm model for the EEOC that would allow EEOC field offices around the country to contribute to systemic cases,[12] permitting the agency to build its disparate impact case capability.[13]  Nearly a quarter of the EEOC’s 2015 cases where it found probable cause involved systemic cases,[14] and that number will likely rise as the agency focuses on building its disparate impact case capability.  Notably, disparate impact cases do not require employer intent to discriminate for liability to attach, but rather examine the impact of an employer’s decision to see whether discrimination may be inferred.  Employers with multiple locations around the country should be aware of the EEOC’s focus on systemic cases and ensure that its decisions, policies, and procedures are not resulting in a disparate impact to any protected group of employees.

[1] Kevin McGowan, EEOC Seeks to Strengthen Its Position as a Solutions-Focused Agency, Bloomberg BNA Daily Labor Report 2016 Labor Outlook, S-24 (Jan. 25, 2016).

[2] The draft retaliation guidance is at http://www.regulation.gov/#!docketDetail;D=EEOC-2016-0001.

[3] Id.

[4] Equal Employment Opportunity Commission, EEOC Seeks Public Input on Draft Proposed Enforcement Guidance on Retaliation and Related Issues (Jan. 21, 2016).

[5] 548 U.S. 53 (2006). 

[6] 133 S. Ct. 2517 (2013).

[7] Kasten v. Saint Gobain Performance Plastics Corp., 563 U.S. 1 (2011).

[8] Thompson v. North American Stainless, LP, 562 U.S. 170 (2011).

[9] Equal Employment Opportunity Commission, What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Feb. 11, 2016). 

[10] See 42 U.S.C. § 2000e-2.

[11] See Burrows v. Coll. Of Cent. Fla., No. 15-14554 (11th Cir. filed Jan 8, 2016); Evans v. Georgia Reg’l Hosp., No. 15-15234 (11th Cir. filed Jan. 11, 2016). 

[12] System cases are defined as those with potential broad impacts on the practices of an employer, industry, or geographic area.  See McGowan, supra note 1.

[13] Id.

[14] Id.