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Living in the "Material" World of the EEOC’s New Retaliation Guidance

Most employers know that major employment actions — terminations, suspensions, demotions ­— need to be reviewed to determine if those actions may result in accusations of retaliation. Unfortunately, “retaliation” has fuzzily expanded to encompass much lesser employment decisions, forcing employers to review more minor employment actions for signs of retaliatory motive. This call for extra carefulness is reflected in the EEOC’s Enforcement Guidance on Retaliation and Related Issues (“Guidance”), which discusses what actions by an employer will be considered sufficiently “materially adverse” to support a retaliation claim. In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court made it clear that a “materially adverse action” would not be limited to demotions, suspensions, and terminations. In its new Guidance, the EEOC explains the term materially adverse “expansively covers any employer action that ‘might well deter a reasonable employee from complaining about discrimination.’” The Guidance goes on to provide examples of what could be “materially adverse,” such as threatening to reassign an employee, targeting an employee by assigning extra amounts of work, or overly scrutinizing their work product or attendance.

Unfortunately, what amounts to “materially adverse” can often be in the eye of the beholder. What the employer intends as constructive feedback for ongoing performance issues could be interpreted by an overly sensitive employee as retaliation. Giving the employee challenging new responsibilities or simply assigning an employee tasks which the employer believes are better suited for the employee’s talents could similarly give rise to a claim of retaliation if the employee has difficulty coping with change, feels overwhelmed with work, or has unrealistic views of their abilities. While employers have long known that they need to exercise caution before terminating an employee who has previously complained about discrimination, employers may now need to treat the complaining employee with “kid gloves” in all interactions. The employee, in turn, is deprived of constructive feedback and misses out on opportunities to grow in the organization simply because the employer is concerned that its actions will be misinterpreted.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.