On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims. The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998. While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority. Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly. The EEOC’s draft guidance can be found here: EEOC Retaliation Guidance
One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief. Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.” If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired. In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis. Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.
The EEOC will accept public comments on its draft guidance until February 24, 2016. Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.