EEOC-Initiated Litigation - 2022 Edition

45 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP F. Preserving Access To The Legal System The EEOC’s Strategic Enforcement Plan also makes it a strategic objective to combat and prevent employment discrimination through the application of the EEOC’s law enforcement authorities, be it through investigation, conciliation, litigation, or federal oversight. This objective has historically been reflected in the EEOC’s aggressive assertion of retaliation claims against employers allegedly obstructing employees’ efforts to participate in EEOC proceedings or otherwise oppose discrimination. However, under new leadership the EEOC appears to be focusing on pre-litigation activities as a significant driver of its efforts to preserve access to the legal system. The EEOC’s Enforcement Guidance on Retaliation states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in protected activity that is in furtherance of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, or Title II of the Genetic Information Nondiscrimination Act . 333 Retaliation claims premised on EEO-related activity are comprised of three elements: (1) protected activity through “participation” in an EEO process or “opposition” to discrimination; (2) materially adverse action taken by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action . 334 First, protected activity generally consists of either “participation” in an EEO process or the reasonable “opposition” to discrimination . 335 These two types of protected activity arise directly from two distinct statutory retaliation clauses that differ in scope. 336 Second, the EEOC defines a “materially adverse action” as anything that could be reasonably likely to deter protected activity, even where such activity is not severe or pervasive and does not have a tangible effect on employment. This includes one-off incidents and warnings . 337 Lastly, a materially adverse action does not violate EEO laws unless there is a causal connection between the action and the protected activity. The Enforcement Guidance recognizes Supreme Court precedent requiring that the complaining party show that the employer would not have taken the adverse action, “but for” a retaliatory motive . 338 The EEOC has championed its view of retaliation law in recent cases. In EEOC v. Proctor Financial, Inc. , 339 the District Court for the Eastern District of Michigan held . In that case, the EEOC alleged that the 333 See U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Retaliation and Related Issues, (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. Retaliation includes not only adverse action taken against an employee, but the threat of adverse action against an employee who has not yet engaged in protected activity for the purpose of discouraging him or her from doing so. See, e.g., Beckel v. Wal-Mart Assocs., Inc. , 301 F.3d 621, 624 (7th Cir. 2002) (holding that threatening to fire plaintiff if she sued “would be a form of anticipatory retaliation, actionable as retaliation under Title VII”); Sauers v. Salt Lake Cty. , 1 F.3d 1122, 1128 (10th Cir. 1993) (“Action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact.”) 334 See Enforcement Guidance on Retaliation and Related Issues, supra note 278. 335 Id. 336 Id. Participation in an EEO process is broadly protected, regardless of whether the EEO allegation is based on a reasonable, good faith belief that a violation occurred, and narrowly defined to include raising a claim, testifying, assisting, or participating in any manner in an investigation, proceeding or hearing under the EEO laws. On the other hand, opposition activity encompasses a broad range of activities by which an individual opposes any practice made unlawful by the EEO statutes. Yet, opposition activity is limited to those who act with a reasonable good faith belief that a potential EEO violation exists and who act in a reasonable manner to oppose it. Opposition to discrimination can be explicit or implicit and need not include any specific words. 337 Id . (actions taken against a third party who is sufficiently close to the complaining employee, in that the individual is in the employee’s “zone of interest,” are considered materially adverse actions); see also Brief for Equal Employment Opportunity Commission as Amici Curiae Supporting Neither Party at 15 , McAllister v. Curtis L. Brunk, No. 18-17393 (9th Cir.) (“Failure to investigate can also constitute a retaliatory adverse action under certain circumstances.”). 338 Id . (For retaliation claims against private sector employers and state and local government employers). By contrast, the “motivating factor” standard, which requires that retaliation is a motivating factor behind an adverse action, is applied to Title VII and ADEA retaliation claims against federal sector employers. Id. Evidence of causation may include suspicious timing, oral or written statements, comparative evidence of similarly situated employees treated differently, inconsistent or shifting explanations for an adverse action, and any other evidence that, when viewed together, demonstrates retaliatory intent. An employer may defeat a retaliation claim by establishing that it was unaware of the protected activity or by demonstrating legitimate non-retaliatory reasons for the challenged action. 339 EEOC v. Proctor Financial, Inc. , No. 19-CV-11911, 2021 WL 4478929 (E.D. Mich. Sept. 30, 2021).