Enforcement guidance on retaliation
In August of 2016, the EEOC issued a guidance document that greatly expanded the risk of retaliation claims for employers under Title VII of the Civil Rights Act of 1964. Previously, the anti-retaliation prohibition protected employees who opposed some illegal employer conduct to be protected from retaliation. But, under the new guidance, employers are also liable if an employee claims retaliation to “implicit” opposition to employer conduct, even if the conduct was perfectly legal. The guidance also expands the scope of what constitutes retaliation to include actions that take place outside of work and are not work related, even if the action has no tangible effect on a person’s employment. And the guidance erodes the causation requirement for these claims, allowing an employee to rely on purely circumstantial evidence of perceived retaliation. These changes dramatically expand businesses’ exposure to retaliation claims. However, the guidance has
never been submitted to Congress and is therefore not in effect, should not be enforced, and remains eligible to congressional disapproval under the Congressional Review Act.