At a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace.
The testimony was presented June 17, 2015 at the EEOC meeting on “Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention” in Washington, D.C. Commissioners heard testimony regarding retaliation charges, which, in 2014, constituted more than 42% of all charges filed. (See Written Testimony here: http://www.eeoc.gov/eeoc/meetings/6-17-15/)
The EEOC should adopt new retaliation guidance in its Compliance Manual embracing the standard adopted by the Supreme Court’s decision in Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), according to Florida management lawyer Karen Buesing, a partner at Akerman LLP, Tampa, FL. The Nassar decision required that an employee prove that “but for” the employee’s protected activity, the adverse employment action would not have occurred.
Buesing noted one reason for the growth of retaliation claims is that often an underperforming employee knows his or her job is on the line, and makes a claim of discrimination in the hopes of creating job security. She agreed with Commissioner Charlotte Burrows’ comment that retaliation claims are “uniquely insidious,” noting that “from the employer’s perspective they are uniquely insidious for another reason: the simple truth is that by filing a complaint of discrimination, an employee can make him or herself a member of a protected class to which he / she did not previously — and could not otherwise — belong.”
Raymond Peeler, Senior Attorney, Office of Legal Counsel EEOC, urged commissioners to consider when employee communications on social media can be protected activity, and when employer communications on social media can be materially adverse actions. “The Commission and the courts are now being presented with new questions about the role of social media,” Peeler noted. Among the questions to be considered are: when an employer’s social media policies can be retaliatory; whether employers can be liable for harassment of co-workers on social media platforms; and when complaints and comments can constitute protected activity.
The EEOC is expected to amend its retaliation guidance in the coming months.