Understanding 570 Individual Fail Codes in Assistance Program Badger Care: A Comprehensive Guide

I. Introduction to EEOC Enforcement Guidance on Retaliation and Related Issues

A. The Foundation: Background of Anti-Retaliation Laws

In the intricate landscape of employment law, the principle of fairness and equality is paramount. Federal employment discrimination laws are built upon the fundamental right of every employee and job applicant to challenge discriminatory practices without the shadow of reprisal. These laws recognize that the effectiveness of anti-discrimination measures hinges on the willingness of individuals to speak out against injustice. To safeguard this willingness, statutory prohibitions against retaliation, often termed “reprisal,” are in place. These protections empower individuals to voice concerns about potential Equal Employment Opportunity (EEO) violations, participate in internal investigations, or file charges with the Equal Employment Opportunity Commission (EEOC) without fear of adverse consequences.

This guidance document serves as a modern replacement for the EEOC’s Compliance Manual Section 8: Retaliation, initially published in 1998. The legal terrain surrounding employment-related retaliation has significantly evolved since then, marked by landmark rulings from the Supreme Court and lower courts alike.¹ Furthermore, the prevalence of retaliation claims has dramatically increased. Since 1998, the percentage of EEOC charges alleging retaliation within both the private sector and state and local government sectors has doubled.² Disturbingly, retaliation has become the most frequently cited basis of discrimination across all sectors, extending even to the federal government workforce.³ This trend underscores the critical importance of understanding and addressing retaliation in today’s workplace.

This document articulates the Commission’s interpretation of retaliation law and related critical considerations. In developing this guidance, the EEOC meticulously examined judicial interpretations and applications of the law across diverse factual scenarios. For many aspects of retaliation law, a notable consistency exists in the interpretations rendered by lower courts. This guidance elucidates these well-established legal principles, employing concrete examples to enhance clarity and practical understanding, particularly where the Commission aligns with these judicial interpretations. However, areas where lower courts exhibit divergent interpretations, or where the EEOC’s perspective diverges, are also addressed. In these instances, the guidance presents the EEOC’s carefully considered stance, supported by detailed analysis. The positions articulated herein represent the Commission’s definitive guidance on its interpretation of the laws it is entrusted to enforce. This document is designed as a valuable resource for EEOC staff, personnel from other federal agencies involved in EEO retaliation matters (investigation, adjudication, litigation, or outreach), employers, employees, and legal practitioners seeking in-depth insights into the EEOC’s position on retaliation issues, and for organizations aiming to implement promising preventative practices, potentially relevant when considering assistance program badger care and avoiding any perceived “570 individual fail code” in fair treatment.

B. Understanding Retaliation: An Overview

Retaliation in the employment context arises when an employer takes a materially adverse action against an individual because that individual has engaged in, or may engage in, activity protected under the EEO laws enforced by the EEOC.⁴ A bedrock principle across all EEO laws is the prohibition of retaliation and related obstructive conduct. This protection spans Title VII of the Civil Rights Act of 1964 (Title VII),⁵ the Age Discrimination in Employment Act (ADEA),⁶ Title V of the Americans with Disabilities Act (ADA),⁷ Section 501 of the Rehabilitation Act (Section 501),⁸ the Equal Pay Act (EPA),⁹ and Title II of the Genetic Information Nondiscrimination Act (GINA).¹⁰ These legal provisions apply to government and private employers, employment agencies, and labor organizations,¹¹ making it unlawful to retaliate against individuals for engaging in “protected activity.”¹² Generally, protected activity encompasses participation in an EEO process or opposition to practices deemed unlawful under EEO law. Even in contexts seemingly unrelated, like assistance program badger care, understanding the principles of fair treatment and avoiding actions that could be perceived as retaliatory is crucial to prevent what might be metaphorically termed a “570 individual fail code” – a systemic breakdown in ethical and legal compliance.

Section II of this guidance delves into the concepts of “participation” and “opposition,” specifying the types of employer actions that can be challenged as retaliatory, and outlining the legal standards used to determine whether an employer’s action was indeed motivated by retaliation in a particular case.

Section III focuses on the ADA’s additional prohibition against “interference” with the exercise of rights guaranteed by the ADA.¹³ This “interference” provision extends beyond the scope of simple retaliation, making it unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of any right under the ADA. It also protects individuals who assist others in exercising their ADA rights.

Section IV addresses the remedies available for retaliation, and Section V presents promising practices employers can adopt to prevent retaliation or interference.

It is crucial to emphasize that the broad scope of anti-retaliation protections does not shield employees from legitimate disciplinary actions for poor performance or misconduct. Raising an internal EEO allegation or filing a discrimination claim does not grant immunity from accountability for job responsibilities or ethical conduct. Employers retain the right to discipline or terminate employees for valid, non-discriminatory, and non-retaliatory reasons, irrespective of any prior protected activity.¹⁴ The determination of whether an adverse action was retaliatory hinges on the specific facts of each case. When a manager proposes an adverse action shortly after an employee engages in protected activity, such as filing an EEOC charge, the employer can mitigate the risk of a retaliation finding by ensuring an independent evaluation of the proposed action’s appropriateness. This independent review helps ensure fairness and avoids even the appearance of a “570 individual fail code” in their assistance or management programs.

For further concise information on retaliation, the EEOC website offers companion publications:

Questions and Answers: Enforcement Guidance on Retaliation and Related Issues https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-retaliation-and-related-issues

Small Business Fact Sheet: Retaliation and Related Issues https://www.eeoc.gov/laws/guidance/small-business-fact-sheet-retaliation-and-related-issues

II. Essential Elements of a Retaliation Claim

To successfully establish a retaliation claim based on actions taken due to EEO-related activity, three fundamental elements must be present:

• (1) Protected Activity: This involves either “participation” in an EEO process or “opposition” to discrimination.¹⁵
• (2) Materially Adverse Action: The employer must have taken a materially adverse action against the employee.
• (3) Causal Connection: A demonstrable causal link must exist between the protected activity and the materially adverse action.

A. Protected Activity: The Cornerstone of Retaliation Claims

The initial step in analyzing a potential retaliation claim is to determine whether the employee engaged in prior EEO activity that is legally protected – termed “protected activity.” Protected activity encompasses two primary forms: “participation” in an EEO process and “opposition” to discrimination. These categories originate from distinct statutory retaliation clauses, each with a different scope. Participation is defined more narrowly, specifically referring to involvement in raising a claim, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under EEO laws. However, participation enjoys very broad legal protection. In contrast, opposition activity covers a wider spectrum of actions where an individual opposes practices made unlawful by EEO statutes. Protection for opposition, however, is contingent on the individual acting with a reasonable good faith belief that a potential EEO violation exists and opposing it in a reasonable manner. Even in contexts seemingly distant from traditional employment, such as assistance program badger care, ensuring individuals feel safe to voice concerns without fear of reprisal—avoiding a “570 individual fail code” in trust—is paramount.

1. Participation: Safeguarding Access to EEO Processes

Anti-retaliation provisions explicitly prohibit discrimination against individuals who have made a charge, testified, assisted, or participated in any way in an investigation, proceeding, or hearing under Title VII, ADEA, EPA, ADA, Rehabilitation Act, or GINA. This “participation clause” offers broad protection against retaliation for various actions, including filing or serving as a witness in administrative proceedings or lawsuits alleging EEO law violations.¹⁶ Crucially, the participation clause applies irrespective of whether the underlying discrimination allegation is ultimately found to be meritorious or was filed within the prescribed time limits.¹⁷

The EEOC has consistently maintained that the participation clause broadly shields EEO participation, regardless of whether an individual holds a reasonable, good faith belief that the underlying allegations constitute or could become unlawful conduct.¹⁸ While the Supreme Court has not directly ruled on this specific point, the participation clause, by its very wording, lacks any limiting language. It unequivocally protects employees’ involvement in complaint, investigation, or adjudication processes.¹⁹ Unlike the opposition clause, which safeguards opposition to practices “made . . . unlawful” by statute and thus necessitates a reasonable good faith belief in a potential legal violation, the participation clause protects participation “in any manner in an investigation, proceeding, or hearing” under the statute (42 U.S.C. § 2000e-3(a)). As one appellate court aptly noted, “[r]eading a reasonableness test into section 704(a)’s participation clause would do violence to the text of that provision and would undermine the objectives of Title VII.”²⁰

The Supreme Court has emphasized that broad participation protection is essential to uphold the core purpose of anti-retaliation provisions: “maintaining unfettered access to statutory remedial mechanisms.”²¹ The applicability of the participation clause cannot be contingent on the substance of testimony. If witnesses in EEO proceedings were protected from retaliation only when their testimony met a subjective “reasonableness standard,” their willingness to be forthcoming would undoubtedly be diminished.²² These robust protections ensure that individuals are not intimidated into abandoning the complaint process and that those tasked with investigating and adjudicating EEO allegations can secure uninhibited witness testimony.²³ It also avoids premature judgments on the merits of an allegation. For these compelling reasons, the Commission disagrees with judicial decisions that have adopted a contrary view.²⁴

This broad protection does not, however, imply that bad faith actions during participation are without consequence. False or bad faith statements by either employees or employers should be appropriately considered by fact-finders, investigators, or adjudicators when evaluating credibility, ruling on procedural matters, determining the scope of fact-finding, and deciding claim merits. The EEOC’s position remains firm: employers can be held liable for retaliation if they independently impose consequences for actions taken during participation. Even in contexts outside traditional employment, such as assistance program badger care, ensuring transparent and fair processes is essential to avoid perceptions of a “570 individual fail code” in accountability.

While courts often limit the participation clause to formal administrative charges or lawsuits filed to enforce EEO rights, categorizing internal EEO complaints (e.g., to company managers or HR) as “opposition,”²⁵ the Supreme Court in Crawford v. Metropolitan Government of Nashville & Davidson County explicitly left open the question of whether internal EEO complaints could also be considered “participation.”²⁶ The EEOC and the Solicitor General have long advocated that participation and opposition can overlap. Raising complaints, serving as a witness (voluntarily or involuntarily), or otherwise participating in an employer’s internal complaint or investigation process – whether before or after an EEOC or Fair Employment Practices Agency (FEPA) charge is filed – falls under the broad protection of the participation clause, while also qualifying as “opposition.”²⁷ The participation clause’s plain language prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing” under the statute (42 U.S.C. § 2000e-3(a), emphasis added). Courts have observed that these statutory terms are broad, unqualified, and not expressly limited to investigations conducted by the EEOC.²⁸ Similarly, contacting a federal agency employer’s internal EEO Counselor under 29 C.F.R. § 1614.105 to allege discrimination is also considered participation.²⁹

This interpretation of the participation clause finds strong support in the Supreme Court’s landmark decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). These cases established an affirmative defense against discriminatory harassment liability based on the availability and proper functioning of internal complaint and investigation processes. The existence and effectiveness of such policies, or an employee’s unreasonable failure to utilize them, directly influence liability in harassment claims. An effective internal process necessitates employee willingness to participate, providing information that may be pro-employer, pro-employee, or neutral. Such participation empowers employers to take prompt corrective action when needed and may shield them from EEO law liability.³⁰ It logically follows that participation in these internal complaint and investigation processes constitutes participation in an “investigation” or “proceeding” as intended and interpreted within the statute. Even in seemingly unrelated fields like assistance program badger care, establishing clear and accessible internal complaint mechanisms is vital for fostering trust and addressing concerns effectively, thus preventing a “570 individual fail code” in program integrity.

2. Opposition: A Broad Spectrum of Protected Conduct

EEO anti-retaliation provisions also prohibit retaliation against individuals for opposing any practice made unlawful by employment discrimination statutes.³¹ Depending on the specific circumstances, the same conduct can qualify for protection as both “participation” and “opposition.” However, the opposition clause offers a broader scope of protection than the participation clause, extending to a wide range of employee actions.

a. Expansive Definition of Opposition

The opposition clause within Title VII is characterized by an “expansive definition,” with “great deference” accorded to the EEOC’s interpretation of what constitutes opposing conduct.³² As the Supreme Court affirmed in Crawford v. Metropolitan Government of Nashville and Davidson County, “‘[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.'”³³ For example, accompanying a coworker to the human resources office to file an internal EEO complaint,³⁴ or complaining to management about discrimination against oneself or coworkers, is highly likely to be considered protected activity.³⁵ Opposition also encompasses situations where “an employee [takes] a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”³⁶ Furthermore, an employee who did not initiate a complaint but answers an employer’s questions about potential discrimination is also considered to be engaging in opposition.³⁷

The opposition clause applies when an individual explicitly or implicitly communicates their belief that the issue being complained about is, or could become, harassment or other form of discrimination.³⁸ This communication can be informal and does not need to use specific legal terminology like “harassment” or “discrimination.” As long as the context indicates that the individual is conveying opposition or resistance to a perceived potential EEO violation, it is likely protected.³⁹ Individuals may express complaints of unfair treatment in broad or ambiguous terms, sometimes because they lack precise knowledge of anti-discrimination law requirements. Such communication is still protected opposition if a reasonable interpretation would be that it opposes employment discrimination. Even in sectors like assistance program badger care, raising concerns about program fairness or equitable access, even without legal jargon, should be seen as protected opposition to ensure program integrity and avoid a “570 individual fail code” related to access or equity.

While the opposition clause is broadly applicable, it does not protect every form of protest against perceived job discrimination. Certain principles guide its application.

b. Reasonableness of the Manner of Opposition

Courts and the EEOC strive to balance the right to oppose employment discrimination with the employer’s need to maintain a stable and productive work environment. Therefore, opposition clause protection is only afforded when the manner of opposition is deemed reasonable.

Complaints to Entities Other Than the Employer: Courts have not restricted the opposition clause solely to complaints made directly to the employer. Complaints about the employer made to external parties, which the employer subsequently learns about, can also be protected opposition.⁴⁰ While opposition often involves complaints to management,⁴¹ informing others about alleged discrimination, including union officials, coworkers, attorneys, or external entities, may constitute a reasonable manner of opposition.⁴² For example, contacting law enforcement to seek criminal prosecution of a coworker for a workplace assault motivated by disability, race, or sex is considered protected opposition, even if it bypasses management or government EEO enforcement agencies.⁴³

Publicly Raised Complaints: Depending on the circumstances, drawing public attention to alleged discrimination can be considered reasonable opposition, provided it is linked to a claimed EEO law violation.⁴⁴ Opposition can even extend to activities like picketing.⁴⁵ It includes informal or public protests against discrimination, “including . . . writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of coworkers who have filed formal charges,”⁴⁶ as long as it is not excessively disruptive or unreasonable.⁴⁷ Furthermore, bypassing the chain of command or prescribed internal complaint procedures to raise discrimination allegations may be considered reasonable.⁴⁸

Advising Employer of Intent to File or Complaining Before Matter is Fully Actionable: Clearly stating to an employer the intention to file a charge with the EEOC, a state or local FEPA, union, court, HR department, higher-level manager, or CEO is a reasonable form of opposition. For instance, if an employee intends to file an EEOC charge challenging a pay disparity with a male coworker as sex discrimination, informing her manager of this intent is protected opposition.⁴⁹ Moreover, informing an employer about alleged or potential discrimination or harassment is reasonable opposition, even if the harassment has not yet reached the threshold of a “severe or pervasive” hostile work environment.⁵⁰ This proactive approach to addressing concerns is crucial, even in contexts like assistance program badger care, where early issue identification can prevent a “570 individual fail code” in program delivery or participant treatment.

Examples of Unreasonable Manner of Opposition: Conversely, opposition is not considered reasonable if an employee, for example, makes an overwhelming volume of demonstrably frivolous complaints,⁵¹ or aggressively pressures a subordinate employee to provide a witness statement supporting an EEOC charge, attempting to coerce them into altering their statement.⁵² Opposition is also deemed unreasonable if it involves unlawful acts, such as committing or threatening violence to life or property. These examples are not exhaustive; the reasonableness of opposition is a context- and fact-specific assessment.

Opposition to perceived discrimination does not grant employees license to neglect their job duties. If an employee’s protests render them ineffective in their role, anti-retaliation provisions do not shield them from appropriate discipline or termination.⁵³ Maintaining professional conduct and fulfilling job responsibilities remains essential, even while engaging in protected opposition. In contexts like assistance program badger care, for example, while advocating for participant rights or program improvements (protected opposition), program staff must still maintain professional standards and continue to provide care effectively to avoid a “570 individual fail code” in service delivery.

c. Reasonable Good Faith Belief in Opposition

Similar to participation, a retaliation claim based on opposition is not invalidated simply because the challenged practice is ultimately deemed lawful.⁵⁴ However, for statements or actions to qualify as protected opposition, they must be based on a reasonable good faith belief that the opposed conduct violates EEO laws, or could do so if repeated.⁵⁵ Because some conduct falls short of an actual violation but could be reasonably perceived as violating Title VII, the reasonable belief standard can protect not only complainants, but also witnesses or bystanders who intervene or report observed conduct.⁵⁶

EXAMPLE 1: Protected Opposition – Reasonable Good Faith Belief

An employee complains to her office manager that her supervisor did not promote her due to her sex after a seemingly less qualified man was selected. Because her complaint was based on a reasonable good faith belief that discrimination occurred, she engaged in protected opposition, regardless of whether the promotion decision was actually discriminatory.

EXAMPLE 2: Not Protected Opposition – Complaint Not Motivated By Reasonable Good Faith Belief

Same scenario as above, but the job required a CPA license, which she lacked, while the selected candidate possessed it. She was aware of the CPA requirement. In this case, she has not engaged in protected opposition because she lacked a reasonable good faith belief that she was rejected due to sex discrimination, rather than her lack of a required qualification.

In Clark County School District v. Breeden, 532 U.S. 268 (2001) (per curiam), applying the reasonable belief standard to opposition against alleged harassment, the Supreme Court ruled that, based on the specific facts, no reasonable person could have believed that a male colleague on a hiring panel engaged in potential unlawful harassment. This occurred when he read aloud a job applicant’s description of sexual conduct, stated he didn’t know what it meant, and laughed when another male employee said, “I’ll tell you later.” The Court in Breeden emphasized that the plaintiff’s job required her to review sexually explicit statements in applications. Her coworkers involved in hiring were subject to the same. The plaintiff even conceded that reading the statement did not bother her. Consequently, the Court concluded her complaints about the incident were not protected opposition, and her retaliation claim under Title VII failed.⁵⁷

Breeden did not alter the established principle that “[c]omplaining about alleged sexual harassment to company management is classic opposition activity.”⁵⁸ Indeed, the hostile work environment liability standard is built upon encouraging employees to “report harassing conduct before it becomes severe or pervasive.”⁵⁹ In Faragher, 524 U.S. 775, and Ellerth, 524 U.S. 742, the Supreme Court created an affirmative defense to discriminatory harassment liability, partly based on an employee’s failure “to take advantage of any preventive or corrective opportunities provided by the employer.”⁶⁰ It is widely recognized that “the victim is compelled by the Faragher/Ellerth defense to make an internal complaint.”⁶¹

If an employee’s internal complaint were not protected, it would create a paradoxical “catch-22” situation. Employees would be forced to choose between complaining to their employer about offensive conduct they experienced or witnessed before it escalates (risking employer retaliation for complaining), or waiting until the harassment becomes “severe or pervasive” to ensure retaliation protection (risking further harm, and potentially relieving the employer of liability if they didn’t complain sooner). Under Faragher and Ellerth, “the victim is commanded to ‘report the misconduct, not investigate, gather evidence, and then approach company officials.'”⁶²

Therefore, reporting even a single, isolated incident of harassment is protected opposition if the employee “reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur.”⁶³ Similarly, complaining about offensive conduct that, if repeated, could create an actionable hostile work environment is also protected opposition.⁶⁴ This principle of early reporting and protection against retaliation is crucial even in non-traditional employment settings, such as assistance program badger care, where prompt reporting of concerns can prevent a “570 individual fail code” in participant safety or program integrity.

It is reasonable for an employee to believe conduct violates EEO laws if the EEOC, as the primary enforcement agency, has adopted that interpretation.⁶⁵

EXAMPLE 3: Protected Opposition – Complaints to Management Consistent with EEOC Legal Position

An employee believes they are being harassed by coworkers due to their sexual orientation and complains to their manager and HR. This is protected activity under Title VII. Given the EEOC’s stated legal position and enforcement efforts, it is reasonable for an individual to believe that sexual orientation discrimination is actionable as sex discrimination under Title VII.⁶⁶

d. Who is Protected from Retaliation for Opposition?

The EEOC’s position is that all employees engaging in opposition activity are protected from retaliation, including managers, HR personnel, and other EEO advisors.⁶⁷ Protecting all communications about potential EEO violations, especially from those officials most likely to identify, investigate, and report them, serves the statutory purpose of the opposition clause. Failing to protect these individuals would create a disincentive for them to fulfill their roles effectively.⁶⁸ Even in sectors like assistance program badger care, protecting staff who raise concerns about program compliance, even if it’s part of their job, is critical to prevent a “570 individual fail code” in ethical operation.

Managerial employees with a duty to report or investigate discrimination must still meet the same requirements as any other employee alleging retaliation under the opposition clause. They must meet the definition of “opposition,” use a reasonable manner of opposition, have a reasonable good faith belief that the opposed practice is unlawful (or would be if repeated), and prove a materially adverse action, the required causation, and liability.⁶⁹

e. Examples of Opposition

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Alt Text: EEOC logo for article about retaliation guidance and assistance program badger care fail codes.

f. Inquiries and Other Discussions Related to Compensation

Taking adverse action for discussing compensation can implicate EEO anti-retaliation protections, as well as various other federal laws. Examples follow to illustrate the application of related authorities. State laws may also provide additional protections.⁸⁰

The U.S. Department of Labor estimates that approximately 60% of private sector workers surveyed nationally report being contractually forbidden or strongly discouraged by management from discussing their pay with colleagues.⁸¹ While most private employers are not obligated to make wage information public, employer actions prohibiting employees from discussing compensation may hinder awareness of discrimination and deter protected activity, whether through “pay secrecy” policies or other actions. Even in contexts like assistance program badger care, pay transparency and open communication are essential to avoid perceptions of a “570 individual fail code” in fair compensation practices.

(1) Compensation Discussions as Opposition Under EEO Laws

When an employee communicates with management or coworkers to complain or inquire about compensation, or discusses pay rates, this communication may constitute protected opposition under EEO laws, making employer retaliation actionable based on the specific facts. For example, discussing with coworkers to gather information or evidence for a potential EEO claim is protected opposition, as long as the manner of opposition is reasonable.⁸²

EXAMPLE 11: Protected Opposition – Wage Complaint Reasonably Interpreted as EEO-Related

A temporary custodian learns she is paid $1/hour less than recently hired male counterparts. She tells her supervisor she believes they are “breaking some sort of law” by paying her lower wages than men in the same temporary custodian role. This is protected opposition.⁸³ Similarly, asking, “I don’t think I’m being paid fairly. Could you tell me what men in this job are paid?” would also be protected opposition.

EXAMPLE 12: Protected Opposition – Discussion of Suspected Pay Discrimination Despite Employer’s Policy Prohibiting Pay Discussions

An African-American employee discussed with coworkers her belief that she was being discriminated against based on race because her pay was lower than Caucasian employees doing similar work. Her employer disciplined her for discussing suspected pay discrimination. This discipline is unlawful retaliation for protected opposition. The employer’s “Code of Conduct” prohibiting pay discussions does not shield them from Title VII retaliation liability. Even in sectors like assistance program badger care, policies restricting pay discussions that lead to suppressing discrimination concerns could be seen as a “570 individual fail code” in transparency and fairness.

(2) Related Protections Under Other Federal Authorities

Besides EEO laws, other federal protections for compensation-related discussions exist for certain employers, including Executive Order (E.O.) 11246 and the National Labor Relations Act (NLRA).

a. Executive Order 11246, as amended – Federal Contractors and Subcontractors

E.O. 11246, as amended by E.O. 13665 (April 8, 2014), prohibits federal contractors and subcontractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their compensation or that of others.⁸⁴ This protection covers any compensation inquiries, discussions, or disclosures. Opposition to alleged discrimination or EEO participation is not required for E.O. 11246 pay transparency violations. The provisions protect even simple coworker inquiries about pay and generally prohibit policies that restrict employees or applicants from discussing or disclosing compensation.⁸⁵ Federal contractors should be particularly aware of these rules to avoid what could be considered a “570 individual fail code” in contractor compliance.

The Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor enforces E.O. 11246 and has issued regulations implementing pay transparency provisions, effective January 11, 2016.⁸⁶ While broad, these regulations provide contractors two specific defenses against pay transparency discrimination claims. A contractor can demonstrate that discipline resulted from violating a uniformly applied rule, policy, practice, or agreement that does not prohibit or tend to prohibit compensation discussions or disclosures. Alternatively, they can show discipline was due to an employee (a) having access to others’ compensation data as part of their job duties, and (b) disclosing that information to those without access, unless the disclosure involved the employee’s own compensation or occurred in specific circumstances.⁸⁷

b. National Labor Relations Act (NLRA)

The NLRA protects non-supervisory employees covered by the Act from employer retaliation for discussing wages or working conditions with colleagues as concerted activity, even without union involvement.⁸⁸ The NLRA prohibits employers from discriminating against employees and job applicants who discuss or disclose their own or others’ compensation. However, NLRA protection does not extend to supervisors, managers, agricultural workers, and rail and air carrier employees. More information about NLRA protections, charge filing, and enforcement is available on the National Labor Relations Board’s website: https://www.nlrb.gov. Even in sectors like assistance program badger care, understanding NLRA protections is important, especially if staff are considered non-supervisory and engage in concerted activities related to pay or working conditions; failing to recognize these rights could lead to a “570 individual fail code” in labor relations.

3. Range of Individuals Engaging in Protected Activity

As detailed above, protected activity can take diverse forms. Individuals engaging in protected activity include:

In addition, individuals mistakenly believed by an employer to have engaged in protected activity are also protected from retaliation.⁹⁹ See also infra § II.B.4. (Third Party Retaliation).

B. Materially Adverse Action: Defining Actionable Retaliation

1. General Rule

Anti-retaliation provisions prohibit taking materially adverse action against an individual due to protected activity. In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court clarified that “materially adverse action” under anti-retaliation provisions is broader than “adverse action” under non-discrimination provisions.¹⁰⁰ To effectively protect against retaliation, the scope broadly encompasses any employer action that “might well deter a reasonable employee from complaining about discrimination.”¹⁰¹ An action need not be materially adverse in isolation, as long as the employer’s retaliatory conduct, considered holistically, would deter protected activity.¹⁰² While “normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence,” the standard can be met even if the individual was not actually deterred.¹⁰³ In assistance program badger care, even seemingly minor actions, if perceived as retaliatory, could deter individuals from raising legitimate concerns, resulting in a “570 individual fail code” in program feedback and improvement.

Burlington Northern emphasized that whether an action is reasonably likely to deter protected activity depends on context. While the standard is “objective,” it is phrased in “general terms” because “the significance of any given act will often depend on the particular circumstances. Context matters.”¹⁰⁴ An “act that would be immaterial in some situations is material in others.”¹⁰⁵ The Supreme Court has held that transferring a plaintiff to a more arduous, dirtier job within the same pay grade and job category, and suspending her without pay for 37 days (even with later reimbursement), were both “materially adverse actions” challengeable as retaliation.¹⁰⁶ Other actionable retaliation examples cited by the Court include the FBI refusing to investigate “death threats” against an agent, filing false criminal charges against a former employee, changing a parent’s work schedule impacting childcare responsibilities, and excluding an employee from a weekly training lunch crucial for professional advancement.¹⁰⁷

This broad “materially adverse” definition from Burlington Northern applies not only to private and state/local government employment, but also to federal sector employment under all EEOC-enforced statutes.¹⁰⁸

2. Types of Materially Adverse Actions

Work-Related Actions: The most obvious adverse actions include denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge.¹⁰⁹ Other types can include work-related threats,¹¹⁰ warnings, reprimands,¹¹¹ transfers,¹¹² negative or lowered evaluations,¹¹³ transfers to less desirable work¹¹⁴ or locations,¹¹⁵ and any adverse treatment that, contextually, might dissuade a reasonable person from protected activity. For example, a formal reprimand is not a “petty slight” but can reduce promotion chances and create job insecurity.¹¹⁶ Similarly, lowered performance appraisals can significantly impact wages or advancement, making them materially adverse.¹¹⁷ In assistance program badger care, work-related actions that could be materially adverse might include unfair performance reviews after raising program concerns, hindering career advancement, or reassignment to less desirable roles – all potentially contributing to a “570 individual fail code” in staff morale and program effectiveness.

Actions Not Directly Work-Related: A materially adverse action can also be one without tangible employment effect, even occurring outside of work, if it might deter a reasonable person from protected activity. Restricting it to work-related actions would fail to prevent retaliation, as employers can retaliate effectively through actions outside the workplace.¹¹⁸ Burlington Northern noted that while anti-discrimination provisions target employment opportunity discrimination based on protected status, anti-retaliation provisions aim to secure that objective by preventing employer interference with efforts to enforce basic legal guarantees.¹¹⁹

Additional Examples: Other materially adverse actions may include:

A fact-driven analysis determines if challenged employer actions would likely deter participation or opposition. To the extent some lower courts applying Burlington Northern have found some listed actions never significant enough to deter protected activity, the EEOC concludes this categorical view contradicts the Supreme Court’s context-specific analysis, broad reasoning, and examples. Even in sectors like assistance program badger care, actions like public shaming or threats, even if seemingly minor, could deter program participants or staff from voicing concerns, leading to a “570 individual fail code” in program transparency and accountability.

Matters not likely to dissuade an employee from protected activity in the circumstances are not actionable retaliation. For example, courts have found temporary office-to-cubicle transfers consistent with policy not materially adverse,¹²⁸ nor occasional brief delays in small refund checks.¹²⁹ These were not deemed likely to deter protected activity, unlike harder work transfers, training lunch exclusion, or unfavorable schedule changes in Burlington Northern.

If an employer’s action would likely deter protected activity, it can be challenged as retaliation even if it falls short of its goal.¹³⁰ The degree of harm suffered impacts damages, not liability.¹³¹ Regardless of harm to the complainant, retaliation harms public interest by deterring others from filing charges.¹³² An interpretation permitting some retaliation forms to go unpunished would undermine EEO statutes and conflict with anti-retaliation provisions’ language and purpose. In assistance program badger care, even unsuccessful attempts to deter reporting issues contribute to a “570 individual fail code” in program culture and ethical standards.

Determining if an action is reasonably likely to deter protected activity under Burlington Northern is fact-dependent.

EXAMPLE 13: Exclusion from Team Lunches

A federal agency employee filed an EEO complaint alleging sex-based promotion denial by her supervisor. A week later, her supervisor invited some employees to lunch, excluding her. Even if excluded due to her complaint, this is likely not unlawful retaliation as it’s not reasonably likely to deter protected activity. However, if the supervisor regularly invited all unit employees to weekly lunches, and she was excluded after filing the complaint, this might be unlawful retaliation as it could reasonably deter her or others from protected activity.¹³³

EXAMPLE 14: Workplace Surveillance

An employee filed an EEOC charge alleging racial harassment by his supervisor and coworkers. He also alleged that after complaining to management, his supervisor asked two coworkers to surveil him and report back. This surveillance is a materially adverse action because it is likely to deter protected activity and is unlawful if done due to the employee’s protected activity. In assistance program badger care, excessive surveillance of staff or participants after they raise concerns could be seen as a “570 individual fail code” in trust and open communication.

EXAMPLE 15: Threats to Report Immigration Status

A contractor employs farmworkers and laborers, placing them in rural agricultural and manufacturing facilities. The contractor and facilities are joint employers under EEO laws. Suspecting undocumented workers, they don’t verify work authorization to meet staffing needs. Female farmworkers, undocumented, complain of sexual harassment by male coworkers, including assaults and unwanted advances. The client supervisor and contractor threaten to expose their immigration status if they continue to complain. Threatening to report, or actually reporting, suspected immigration status is materially adverse and actionable retaliation for protected activity. Both contractor and facility owner can be liable. Undocumented status or contractor placement is no defense.¹³⁴

EXAMPLE 16: Workplace Sabotage, Unfavorable Location, and Abusive Scheduling

After an employee cooperated in a workplace race discrimination investigation, a supervisor intentionally left a window ajar to prevent him from setting the alarm (his job duty), leading to discipline. The supervisor also engaged in punitive scheduling, shortening off-duty time and changing his schedule to require working alone at a more dangerous facility. These acts of sabotage, unfavorable location assignment, and punitive scheduling constitute materially adverse actions.¹³⁵ In assistance program badger care, similar sabotage tactics, such as undermining a staff member’s work after they report program deficiencies, could be a “570 individual fail code” in ethical management.

EXAMPLE 17: Disclosure of Confidential EEO Information and Disproportionate Workload

Three weeks after a federal employee sought EEO counseling for disability and gender discrimination, her supervisor posted her EEO complaint on the agency intranet, accessible to coworkers. The supervisor also increased her workload five to six times that of others. Both actions are materially adverse and actionable retaliation.¹³⁶ In assistance program badger care, publicly disclosing a participant’s complaint or retaliatory workload increases for staff who raise concerns would be a “570 individual fail code” in confidentiality and fair treatment.

3. Harassing Conduct as Retaliation

Retaliatory conduct is sometimes termed “retaliatory harassment.” The threshold for retaliatory harassment differs from discriminatory hostile work environment. Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if not severe or pervasive enough to alter employment terms and conditions.¹³⁷ If the conduct is sufficiently material to deter protected activity, even if not severe/pervasive enough for a hostile work environment claim, it constitutes actionable retaliation.

4. Third-Party Retaliation: Protection Extends Beyond the Complainant

a. Materially Adverse Action Against Employee

Employers sometimes retaliate against an employee who engaged in protected activity by harming a third party closely related or associated with them.¹³⁸ The Supreme Court noted that a reasonable worker might be deterred from protected activity if their fiancé would be fired.¹³⁹ Similarly, punishing an employee for protected activity by canceling a vendor contract with their spouse (even if the spouse is employed by a contractor, not the employer) could deter protected activity.¹⁴⁰ While there’s no fixed list of relationships for third-party reprisals to be unlawful, firing a close family member almost always meets the Burlington standard, whereas a milder reprisal against a mere acquaintance almost never does.¹⁴¹ In assistance program badger care, retaliating against a staff member by harming a family member or close associate due to the staff member raising program concerns would be a “570 individual fail code” in ethical conduct and legal compliance.

b. Standing to Challenge: “Zone of Interests”

In actionable third-party retaliation cases, both the employee who engaged in protected activity and the third party subjected to adverse action can state a claim. The third party can claim even without engaging in protected activity or being employed by the defendant employer. “Regardless of whether the plaintiffs are employed by the defendant, . . . the harm they suffered is no less a product of the defendant’s purposeful violation of the anti-retaliation provision.”¹⁴² As the Supreme Court stated, the third party is not an “accidental victim”; “[t]o the contrary, injuring him was the employer’s intended means of harming the [employee who engaged in protected activity].”¹⁴³ Thus, the third party “falls within the ‘zone of interests’ sought to be protected by [the retaliation provision]” and has standing to seek recovery for their harm.¹⁴⁴

C. Causal Connection: Establishing the Link Between Activity and Action

1. Causation Standards

Unlawful retaliation is established when a causal link exists between a materially adverse action and an individual’s protected activity. The retaliatory motive need not originate from the official taking the adverse action; vicarious liability can exist if an agent, driven by retaliatory animus, intentionally and proximately caused the official to act.¹⁴⁵ A retaliation claim fails without sufficient evidence of retaliation under the applicable causation standard.

a. “But-For” Causation Standard for Private Sector and State/Local Government Employers

In private sector and state/local government retaliation cases under EEOC-enforced statutes, causation requires showing that “but for” a retaliatory motive, the employer would not have taken the adverse action, as established by the Supreme Court in University of Texas Southwest Medical Center v. Nassar.¹⁴⁶ In contrast, the “motivating factor” causation standard for discrimination claims can be met even if the employer would have taken the same action absent discriminatory motive.¹⁴⁷

“But-for” causation does not require retaliation to be the “sole cause” of the action. Multiple “but-for” causes can exist; retaliation only needs to be “a but-for” cause for the employee to prevail.¹⁴⁸ The Supreme Court explains “but-for” causation even with multiple causes:

“[W]here A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467-468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so-if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.¹⁴⁹

b. “Motivating Factor” Causation for Federal Sector Title VII and ADEA Retaliation Claims

Conversely, in federal sector Title VII and ADEA retaliation cases, the EEOC holds that the “but-for” standard does not apply because relevant federal sector statutory provisions lack the language on which the Nassar Court based its holding.¹⁵⁰ Federal sector provisions contain a “broad prohibition of ‘discrimination’ rather than a list of specific prohibited practices,” requiring employment “be made free from any discrimination,” including retaliation. Therefore, in federal sector Title VII and ADEA cases, retaliation is prohibited if it was a motivating factor.¹⁵¹

2. Evidence of Causation

For an employee to prevail, evidence must show retaliation is more likely than not. The employer is not burdened to disprove the claim.¹⁵²

Sometimes, evidence directly demonstrates an employer’s retaliatory motive, verbally or in writing.¹⁵³ Often, however, employers offer non-retaliatory reasons for challenged actions. For example, an employer may claim lack of awareness of protected activity,¹⁵⁴ or that they didn’t know complaints concerned discrimination.¹⁵⁵ Or, they may assert legitimate, unrelated reasons like poor performance or misconduct,¹⁵⁶ inadequate qualifications,¹⁵⁷ or truthful negative job references.¹⁵⁸ In assistance program badger care, employers might claim actions were due to program restructuring or performance issues, rather than retaliation for raising program concerns.

Proof of pretext in the employer’s non-retaliatory explanation is possible. For instance, if a former employer typically declines to offer performance information but deviates for someone who engaged in protected activity.¹⁵⁹ If an employer’s explanation is false, a fact-finder may infer retaliation or another concealed reason. This determination is based on the totality of evidence.

EXAMPLE 18: Explanation for Non-Selection Was Pretext for Retaliation

An employee alleges promotion denial due to opposing underrepresentation of women in management, making her a “troublemaker.” The employer claims the selectee was better qualified with a master’s degree, while the employee only has a bachelor’s. However, if the employee has significantly more company experience, and experience has long been the primary selection criterion, this explanation may be found pretext for retaliation.

3. Examples of Facts Supporting Retaliation Findings

Various evidence types, alone or combined, can determine if causation standards are met, allowing an inference of retaliatory adverse action.¹⁶⁰

Evidence may include suspicious timing, verbal/written statements, comparative evidence of different treatment for similarly situated employees, falsity of employer’s reason, or other evidence pieces permitting retaliatory intent inference.¹⁶¹

Suspicious Timing: Causal link is often established by adverse action shortly after protected activity.¹⁶² However, temporal proximity is not always necessary.¹⁶³ Even with lengthy time gaps, other retaliatory motive evidence can establish causation.¹⁶⁴ Complaint processing actions can remind employers of pendency or fuel animus. Retaliatory opportunities may arise later. Materially adverse actions can occur long after original protected activity, yet retaliatory motive can still be proven.¹⁶⁵ In assistance program badger care, retaliation might not be immediate; delayed actions like budget cuts or program changes affecting those who raised concerns could still indicate a “570 individual fail code” in long-term program management.

Oral or Written Statements: Statements by individuals recommending or approving challenged adverse actions can reveal retaliatory intent through expressed animus, inconsistencies, predetermined decisions, or indications of false reasons.¹⁶⁶ Statements may be made to the employee or others.¹⁶⁷

Comparative Evidence: Inference of retaliatory motive can be supported by evidence of more favorable treatment for similarly situated employees who did not engage in protected activity. For example, in retaliatory disciplinary actions, selective enforcement (infraction usually undisciplined, another employee committing same infraction not disciplined, or less severely disciplined) could infer retaliatory motive.¹⁶⁸ Similarly, absent new performance issues, retaliatory motive might be inferred if an employee had higher performance appraisals before protected activity.¹⁶⁹ In assistance program badger care, comparative evidence might involve harsher disciplinary actions for staff who raise concerns compared to others committing similar infractions, indicating a “570 individual fail code” in equitable management.

Inconsistent or Shifting Explanations: If an employer changes its stated reason for challenged adverse action over time or in different contexts (e.g., termination meeting reasons differ from EEOC position statement reasons), pretext may be inferred.¹⁷⁰ However, inference of discrimination from changes is undermined if inconsistencies are minor or credibly explained by the employer (e.g., new information discovered).

Other Evidence of Pretext: Other evidence can show an employer’s justification for the challenged action is unbelievable, and the explanation is pretext to conceal retaliation.¹⁷¹

EXAMPLE 19: Evidence of Retaliatory Intent – Manager Advised No-Hire Based on Prior EEO Activity

An employee sues Company A for sexual harassment and constructive discharge, settling the suit. She applies for a job with Company B and receives a conditional offer pending a reference check. Company B calls Company A, and her former supervisor says she was a “troublemaker,” started a sex harassment lawsuit, and is someone Company B “would not want to get mixed up with.” Company B then rescinds the offer. These statements support the conclusion that due to her prior sexual harassment allegation, Company A provided a negative reference, and Company B rescinded the job offer. Both A and B can be liable for retaliation. In assistance program badger care, a similar scenario could involve a negative reference to a former employee who raised program concerns, hindering their future career prospects and representing a “570 individual fail code” in ethical departure practices.

EXAMPLE 20: Evidence of Retaliatory Intent – Manager Departed from Practice

Jane, a saleswoman, employed at a retail store for over a decade, always exceeds sales quotas and receives excellent performance appraisals. Shortly after the company learns Jane provided a witness statement to the EEOC supporting a coworker’s sexual harassment claim, they terminate Jane, citing her failure to provide 48-hour notice for a shift swap. She alleges retaliatory termination. Evidence shows same-day shift swap notice was widespread company practice. This evidence, combined with discharge proximity to the company learning of her protected activity, could support a retaliatory discharge conclusion. In assistance program badger care, a similar scenario could involve firing a staff member for a minor infraction after they report program issues, while similar infractions by others are routinely overlooked, indicating a “570 individual fail code” in inconsistent disciplinary practices.

4. Examples of Facts Defeating a Retaliation Claim

Even with protected activity and materially adverse action, evidence of the following, alone or combined, may be credited by fact-finders, leading to the conclusion that the action was not retaliation under the applicable causation standard.

Employer Unaware of Protected Activity: Retaliation cannot be shown without establishing employer knowledge (decision-maker or influencer) of prior protected activity.¹⁷² Absent knowledge, there is no retaliatory intent, and thus no causal connection.¹⁷³

Legitimate Non-Retaliatory Reason: An employer may offer a legitimate non-retaliatory reason for the challenged action. Examples include:

• Poor performance
• Inadequate qualifications
• Inferior qualifications, application, or interview performance compared to the selectee
• Negative job references
• Misconduct (threats, insubordination, unexcused absences, dishonesty, abusive conduct, theft)
• Reduction in force or downsizing

While the employer does not bear the burden to disprove retaliation, they may have evidence supporting their explanation, such as comparative evidence of similar treatment for those not engaging in protected activity, or supporting documentation and witness testimony. In assistance program badger care, legitimate non-retaliatory reasons for adverse actions might include documented performance issues, program funding cuts, or necessary restructuring, unrelated to protected activity.

EXAMPLE 21: Negative Reference Was Truthful, Not Retaliatory

An employee alleges his former private sector employer gave a negative job reference due to filing an EEO discrimination claim after termination. The employer provides evidence that they routinely give performance information and that negative statements to the prospective employer were honest assessments of the former employee’s job performance. Unless it can be concluded the negative reference was due to the discrimination claim, retaliation would not be found.

EXAMPLE 22: Action Not Motivated By Retaliation

Plaintiff, an office manager, believed non-selection for managerial positions was sex discrimination and posted online, “anyone know a good EEO lawyer? need one now.” Management saw this and shared it with HR. Plaintiff was later discharged, alleging retaliation. However, evidence showed termination was due to extensive unauthorized overtime and repeated violations of company finance procedures, enforced for other employees, with prior written discipline for Plaintiff. Even with management awareness of Plaintiff’s protected activity (intent to take action on a potential EEO claim), Plaintiff cannot prove retaliatory discharge.

Evidence of Retaliatory Motive But Adverse Action Would Have Happened Anyway: In “but-for” standard cases, claims fail unless retaliation was a “but-for” cause of the adverse action. Causation cannot be proven if evidence shows the challenged action would have occurred regardless of retaliatory motive.

EXAMPLE 23: “But-For” Causation Not Shown

A private sector employee alleges retaliatory termination. Evidence shows management admitted being “mad” at the employee for a prior religious discrimination charge, but this is insufficient to show protected activity was a “but-for” cause of termination. She was fired for repeated workplace safety rule violations and insubordination. The employee admitted violating rules and being uncooperative with her supervisor. Further evidence showed pre-EEO claim warnings that continued safety rule violations could result in termination.¹⁷⁴

III. ADA Interference Provision: Beyond Retaliation

Besides retaliation, the ADA prohibits “interference” with exercising or enjoying ADA rights, or assisting others in doing so.¹⁷⁵ The interference provision is broader than anti-retaliation, protecting anyone subjected to coercion, threats, intimidation, or interference regarding ADA rights (42 U.S.C. § 12203(b)).¹⁷⁶ Similar to ADA retaliation, an applicant or employee need not be “disabled” or “qualified” to prove ADA interference. In assistance program badger care, the ADA interference provision extends to protecting participants with disabilities from coercion or intimidation related to their program access or accommodations, ensuring a program free from a “570 individual fail code” in accessibility and inclusivity.

“Coerce,” “intimidate,” “threaten,” and “interfere” are not separately defined in statute, regulations, or court decisions. Collectively, they encompass actions that, even if not unlawful retaliation, are actionable as interference.¹⁷⁷

Many employer threats or coercion instances could be actionable under ADA as accommodation denial, discrimination, or retaliation. Many examples in this section could be actionable under those theories too. However, the broader “interference” provision reaches conduct not meeting the “materially adverse” standard for retaliation. Examples of ADA-prohibited interference include:

• Coercing an individual to relinquish an entitled accommodation.
• Intimidating an applicant from requesting application accommodation by implying non-hire.
• Threatening employment loss for not “voluntarily” submitting to otherwise prohibited medical exams or inquiries.
• Issuing policies limiting ADA protection rights (e.g., “no exceptions” leave policies).
• Interfering with a former employee’s ADA lawsuit right with threats of negative job references.
• Subjecting an employee to unwarranted discipline for assisting a coworker in requesting accommodation. In assistance program badger care, these interference examples translate to program practices that deter participants with disabilities from seeking accommodations or raising concerns about program accessibility, contributing to a “570 individual fail code” in inclusive program design.

The interference provision does not apply to any and all conduct or statements found intimidating by an individual.¹⁷⁸ The EEOC views it as prohibiting conduct reasonably likely to interfere with ADA rights exercise or enjoyment.¹⁷⁹

EXAMPLE 24: Manager Pressures Employee Not to Advise Coworker of Right to Reasonable Accommodation

Joe, a mailroom employee with an intellectual disability, struggles with oral instructions. Coworker Dave explains Joe’s right to written instructions as ADA accommodation and helps Joe request it from HR. The supervisor, annoyed at “more work,” tells Dave if he keeps “stirring things up” with “accommodation business,” he’ll “regret it.” The supervisor’s threat against Dave for assisting Joe in exercising ADA rights can constitute interference. In assistance program badger care, discouraging staff from informing participants about their accommodation rights would be a “570 individual fail code” in participant support and empowerment.

EXAMPLE 25: Manager Refuses Accommodation Unless Employee Tries Medication First

Reviewing medical information for accommodation of an employee’s depression, an employer learns her physician prescribed medication that might eliminate the need. The employee chose not to take it due to side effects. The employer advises accommodation will not be considered unless she tries medication first. The employer’s actions are both accommodation denial and ADA interference.

EXAMPLE 26: Manager Warns Employee Not to Request Accommodation

An employee with a vision disability needs special computer technology. She requests paid administrative leave for off-site vocational technology center visits with HR to decide on equipment and for training. Her supervisor objects, but HR advises it’s part of ADA accommodation and leave should be granted. The supervisor tells her he’ll allow it “this time,” but if she “ever brings up the ADA again, she ‘will be sorry.'” The supervisor’s threat is ADA rights interference, even without further adverse action. In assistance program badger care, a manager warning a participant not to request disability accommodations, even without denying the accommodation, is a “570 individual fail code” in program culture and respect for participant rights.

EXAMPLE 27: Manager Conditions Accommodation on Withdrawal of Formal Request

After an interactive process, an employee with multiple sclerosis gets a schedule change as accommodation. When her condition worsens, she requests additional accommodations, including telecommuting on symptom flare-up days. The employer has a no-telework policy. HR advises ADA may require policy exception unless undue hardship. Instead of the interactive process, the supervisor tells her to withdraw her formal request; he’ll informally allow one day of weekly telework. If she persists, he’ll tell HR her job cannot be done from home. The supervisor’s actions are ADA interference.

EXAMPLE 28: Manager Threatens Employee With Adverse Action If She Does Not Forgo Previously Granted Accommodation

Due to PTSD from a nighttime attack, an employee is accommodated with daytime shift assignments. A new supervisor threatens transfer, demotion, or medical retirement if she doesn’t work a “normal schedule.” Based on these facts, the supervisor violated the ADA interference provision.

EXAMPLE 29: Refusal to Consider Applicant Unless He Submits to Unlawful Pre-Employment Medical Exam

A job applicant declines a pre-offer medical exam, citing ADA prohibition. The interviewer refuses to consider the application without the exam, so the applicant submits. Regardless of qualification or hire, the employer engaged in interference and improper disability-related examination, violating the ADA. In assistance program badger care, requiring participants to undergo unnecessary medical evaluations as a condition of program entry or continued participation could be a “570 individual fail code” in program design and respect for participant autonomy.

IV. Remedies for Retaliation and Interference

A. Temporary or Preliminary Relief

The EEOC can seek temporary injunctive relief before charge disposition if preliminary investigation indicates prompt judicial action is needed to fulfill Title VII’s purposes. The ADA and GINA incorporate this provision.¹⁸⁰ While ADEA and EPA don’t authorize interim relief pending EEOC charge resolution, the EEOC can seek it as part of a permanent relief lawsuit under Federal Rule of Civil Procedure 65.

Temporary or preliminary relief allows courts to halt retaliation before or during its occurrence. Relief is appropriate if there is a substantial likelihood that the challenged action will be found unlawful retaliation and if the charging party and/or public interest will likely suffer irreparable harm due to retaliation. While financial hardships are not irreparable, harms accompanying job loss may be. For example, courts have held forced retirees showed irreparable harm and qualified for preliminary injunctions due to lost work, future prospects, emotional distress, depression, contracted social life, and related harms.¹⁸¹ In assistance program badger care, preliminary relief might be sought to prevent immediate program changes that could harm participants or deter reporting of program issues, acting as a safeguard against a “570 individual fail code” in program integrity.

EXAMPLE 30: Preliminary Relief Granted to Prohibit Retaliatory Transfer During EEO Case

An employee filed a court action to enforce relief from a Title VII national origin discrimination case. Within two months, his employer ordered transfer from Los Angeles to Detroit or discharge. The court granted preliminary relief to prevent the alleged retaliatory transfer and allow continued employment pending merit adjudication.¹⁸²

Temporary injunctions are also appropriate if a respondent’s retaliation is likely to irreparably harm the EEOC’s ability to investigate the original discrimination charge. If alleged retaliation might discourage testimony or filing further charges based on the same or other unlawful acts, preliminary relief is justified.¹⁸³

EXAMPLE 31: Preliminary Relief Prohibiting Witness Intimidation

During the EEOC’s systemic investigation of sexual harassment at a large agricultural producer with many low-wage, seasonal employees, they learned management was creating an intimidating environment to deter current and former employees from cooperating as witnesses. The court granted preliminary relief prohibiting retaliatory measures against EEOC potential class members, witnesses, or their families, and actions discouraging association with those individuals. It also enjoined the company from paying or offering to pay for favorable testimony in the EEOC’s case.¹⁸⁴ In assistance program badger care, preliminary relief could be sought to prevent witness intimidation if a program is investigated for participant mistreatment or program irregularities, ensuring a fair investigation and preventing a “570 individual fail code” in investigative integrity.

B. Compensatory and Punitive Damages for Retaliation

Compensatory and punitive damages are potentially available under anti-retaliation provisions based on the standards below. Note: Punitive damages are only available against private employers, not government entities.

1. Title VII and GINA

Under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, compensatory and punitive damages are available for Title VII violations, including retaliation. Caps on combined compensatory and punitive damages (excluding past monetary losses) range from $50,000 (15-100 employees) to $300,000 (over 500 employees). GINA Section 207 incorporates the same Title VII remedies. Punitive damages are available for practices undertaken “with malice or with reckless indifference to federally protected rights of an aggrieved individual” (42 U.S.C. § 1981a(b)(1)). Eligibility for punitive damages depends on employer state of mind, not “egregiousness” of misconduct.¹⁸⁵

2. ADEA and EPA

Compensatory and punitive damages are available for ADEA and EPA retaliation claims, even though unavailable for non-retaliation claims under those statutes.¹⁸⁶ ADEA and EPA compensatory and punitive damages are not subject to statutory caps.

3. ADA and Rehabilitation Act

ADA Title V sets forth retaliation and interference provisions but lacks its own remedy provision. Courts are split on whether compensatory and punitive damages are available for ADA retaliation or interference.¹⁸⁷ While the Civil Rights Act of 1991’s damages provision doesn’t explicitly mention ADA retaliation claims, the EEOC and DOJ maintain that compensatory and punitive damages are available for ADA retaliation or interference.¹⁸⁸ The ADA retaliation provision refers to 42 U.S.C. § 12117 for remedies, which adopts Title VII remedies in 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981a(a)(2). Moreover, the Civil Rights Act of 1991’s damages provision reference to ADA intentional discrimination (section 102, 42 U.S.C. § 12112) must encompass retaliation as intentional discrimination. Thus, damage availability for ADA and Rehabilitation Act retaliation claims should be assessed under Title VII standards.¹⁸⁹ In assistance program badger care, the availability of compensatory and punitive damages serves as a strong deterrent against retaliation, reinforcing the importance of avoiding a “570 individual fail code” in program accountability.

C. Other Relief

Under all EEOC-enforced statutes, relief may include back pay if retaliation resulted in termination, constructive discharge, or non-selection, as well as front pay or reinstatement. Equitable relief sought by the EEOC often includes policy/procedure changes, managerial training, reporting to the EEOC, and other measures to prevent violations and promote future compliance.

V. Promising Practices for Preventing Retaliation

While every workplace is unique, employers can consider implementing various promising policy, training, and organizational changes to minimize retaliation violations.¹⁹⁰ The EEOC uses “promising practices” as these steps may help reduce violation risks, but no single best approach exists for every workplace or circumstance. In assistance program badger care, adopting these practices is crucial to build a program culture that proactively prevents a “570 individual fail code” in ethical and legal compliance.

Adopting these practices does not insulate employers from liability or damages for unlawful actions. Meaningful implementation may reduce violation risks, even if not legal requirements.

A. Written Employer Policies

Employers should maintain a written, plain-language anti-retaliation policy with practical guidance on employer expectations and user-friendly examples of dos and don’ts. Policies should include:

• Examples of retaliation that managers may not realize are actionable, including actions not cognizable as discriminatory disparate treatment but actionable retaliation due to deterring protected activity.
• Proactive steps to avoid actual or perceived retaliation, including practical guidance for managers/supervisors interacting with employees who have made discrimination allegations.
• A reporting mechanism for employee retaliation concerns, including access to informal resolution.
• Clear explanation that retaliation can result in discipline, up to termination.

Employers should review and revise punitive formal/informal policies that may deter protected activity, such as policies imposing materially adverse actions for wage inquiries, disclosures, or discussions. While most private employers aren’t required to disclose or publicize wages, actions deterring or punishing employees regarding pay inquiries/discussions may constitute retaliation under federal and/or state law. See supra § II-A.2.f. (Compensation Inquiries/Discussions). In assistance program badger care, written policies should explicitly prohibit retaliation against staff or participants who report program concerns, ensuring a clear stance against a “570 individual fail code” in program culture.

B. Training

Employers should consider these training ideas:

• Train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.
• Send a top management message that retaliation is not tolerated, provide policy/procedure information in various formats, and hold periodic refresher training.
• Tailor training to address specific EEO knowledge/behavioral standards deficits in the workplace, ensuring employees know protected activity and providing examples to avoid problematic situations that have occurred or are likely.
• Offer explicit instruction on alternative proactive, EEO-compliant ways to handle situations. Managers/supervisors may benefit from scenarios and advice to ensure discipline and performance evaluations are based on legitimate, non-retaliatory reasons.
• Emphasize that those accused of EEO violations, especially managers/supervisors, should not act on revenge or retribution, while acknowledging these emotions may arise.
• Include training for management/HR on being responsive and proactive when employees raise potential EEO violation concerns, including basics like asking for clarification, consulting superiors, and following up promptly with the employee who raised the concern.
• Don’t limit training to office workers. Provide EEO compliance/anti-retaliation training for diverse workplace settings, including lower-wage manufacturing/service industries, manual laborers, and farmworkers.
• Consider overall efforts to encourage a respectful workplace, which social scientists suggest may curb retaliatory behavior. In assistance program badger care, training should extend to all staff and volunteers, emphasizing the importance of non-retaliation and fostering a culture where reporting concerns is encouraged and valued, thus preventing a “570 individual fail code” in program ethics.

C. Anti-Retaliation Advice and Individualized Support

Following EEO allegations, employers should automatically provide information to all parties and witnesses about anti-retaliation policy, reporting mechanisms, and how to avoid retaliation. As part of debriefing, managers/supervisors alleged to have discriminated should receive guidance on handling personal feelings about allegations when performing managerial duties or interacting in the workplace.

• Provide tips to avoid actual/perceived retaliation and access to a resource individual for advice/counsel. This may occur during standard debriefing of managers, supervisors, or witnesses after allegations, ensuring those accused receive prompt advice from HR, EEO, or designated managers/specialists to address concerns/resentments and develop strategies to avoid actual/perceived retaliation. In assistance program badger care, individualized support and advice should be available to staff and volunteers involved in EEO-related situations, ensuring they understand their rights and responsibilities and preventing a “570 individual fail code” in staff relations.

D. Proactive Follow-Up

Employers may wish to check in with employees, managers, and witnesses during EEO matters to inquire about retaliation concerns and provide guidance. This identifies issues early, reassures employees/witnesses of employer commitment to anti-retaliation, and supports managers/supervisors named in long-pending discrimination matters. In assistance program badger care, proactive follow-up with staff and participants who have raised concerns or been involved in EEO-related processes can build trust and demonstrate a commitment to preventing a “570 individual fail code” in program responsiveness.

E. Review of Employment Actions for EEO Compliance

Consider ensuring HR/EEO specialists, designated management, in-house counsel, or other resource individuals review proposed consequential employment actions to ensure legitimate non-discriminatory, non-retaliatory reasons. Reviewers should:

• Require decision-makers to identify reasons for consequential actions and ensure documentation supports decisions.
• Scrutinize performance assessments for sound factual basis and freedom from unlawful motivations, emphasizing consistency to managers.
• Where retaliation occurred, identify/implement useful process changes.
• Review available data/resources to identify organizational components with compliance deficiencies, determine causes, and implement responsive training, oversight, or other changes to address weaknesses. In assistance program badger care, implementing a review process for significant program decisions, especially those impacting participants or staff who have raised concerns, can help ensure EEO compliance and prevent a “570 individual fail code” in program governance.

Additional retaliation reduction suggestions are available at Retaliation – Making it Personal, Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/types/retaliation_considerations.cfm.

¹ Supreme Court decisions handed down after issuance of the EEOC’s 1998 Compliance Manual that concern retaliation under EEOC-enforced laws include: University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013); Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011); Thompson v. North American Stainless, LP, 562 U.S. 170 (2011); Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009); Gomez-Perez v. Potter, 553 U.S. 474 (2008); Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); and Clark County School District v. Breeden, 532 U.S. 268 (2001).

² Beginning in fiscal year (FY) 2009, charges of retaliation surpassed race discrimination as the most frequently alleged basis of discrimination. In FY 2015, retaliation claims were included in 44.5% of all charges received by the EEOC, and 35.7% of the Title VII charges received. See Charge Statistics, FY 1997 Through FY 2015, Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 (last visited Aug. 28, 2024).

³ In the federal sector, retaliation has been the most frequently alleged basis since 2008, and between fiscal years 2009 and 2015, retaliation findings comprised between 42% and 53% of all findings of EEO violations. See Equal Employment Opportunity Data Posted Pursuant to the No Fear Act, Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/no-fear/equal-employment-opportunity-data-posted-pursuant-no-fear-act-0 (last visited Aug. 18, 2016).

⁴ For example, complaining or threatening to complain about alleged discrimination against oneself or others may constitute protected activity. See infra § II-A.2.e. (Examples of Opposition). In addition, the doctrine of anticipatory retaliation (also called preemptive retaliation) prohibits an employer from threatening 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.”). Note: issues related to waivers and releases that might be retaliatory are not addressed in this guidance.

⁵ Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

⁶ Section 4(d) of the ADEA, 29 U.S.C. § 623(d), provides:

It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, tes­ti­fied, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

⁷ Section 503 of the ADA, 42 U.S.C. § 12203, provides:

(a) Retaliation

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures.

The remedies and procedures available under sections 12117, 12133, and 12188 of this title [sections 107, 203 and 308] shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III, respectively, of this chapter [title I, title II and title III].

⁸ Section 501 of the Rehabilitation Act, 29 U.S.C. § 791(f) (“Standards used in determining violation of section”), covering designated federal government applicants and employees, provides:

The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.

⁹ The EPA incorporates the anti-retaliation provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). This provision does not delineate types of protected activity such as opposition and participation, but its language has been construed to prohibit retaliation for both oral and written complaints, whether made internally to an employer or externally to the EEOC or a state/local Fair Employment Practices Agency. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14-16 (2011) (interpreting the FLSA anti-retaliation provision to find that oral complaints may be protected activity, but declining to decide whether internally filed complaints to management suffice), on remand, 703 F.3d 966, 976 (7th Cir. 2012) (holding that plaintiff’s oral complaint to his manager was protected activity); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115-16 (2d Cir. 2015) (concluding, consistent with all circuits to have addressed the issue, that the FLSA’s anti-retaliation provision incorporated into the EPA prohibits retaliation against employees who orally complain to their employers); Minor v. Bostwick Labs., Inc., 669 F.3d 428, 432-33 (4th Cir. 2012) (ruling that intra-company complaints are protected activity under the FLSA, consistent with the majority of circuits to have addressed the issue).

¹⁰ Section 207(f) of Title II of GINA, 42 U.S.C. § 2000ff-6(f), provides:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. The remedies and procedures otherwise provided for under this section shall be available to aggrieved individuals with respect to violations of this subsection.

¹¹ The terms “employer” and “employee” are used throughout this document to refer to all those covered under the EEO laws. The EEOC Compliance Manual Section 2: Threshold Issues (2000), https:www.eeoc.gov/laws/guidance/section-2-threshold-issues, provides guidance to determine whether a particular entity is subject to these laws based on its size or other characteristics, and whether a worker is considered an “employee” for purposes of the EEO laws regardless of whether called an “independent contractor” or other name. Federal employers are included as covered entities prohibited from engaging in retaliation under each of the employment discrimination statutes. See Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of action in the federal sector for retaliation under the ADEA and describing § 633 of the ADEA as a “broad prohibition of ‘discrimination’ rather than a list of specific prohibited practices”).

¹² Where it appears that an allegation of retaliation raised in an EEOC charge may be solely subject to the jurisdiction of another federal agency or a state or local government, rather than EEOC, the charging party should be referred promptly to the appropriate agency. For example, claims of retaliation for union activity should be referred to the National Labor Relations Board. Similarly, claims of retaliation for raising violations of federal wage and hour laws, such as reprisal for raising timekeeping violations, or withholding of overtime pay, should be referred to the Department of Labor, Wage and Hour Division.

¹³ See 42 U.S.C. § 12203(b); supra note 7.

¹⁴ Glover v. S.C. Law Enf’t Div., 170 F.3d 411, 414 (4th Cir. 1999) (“[A]n EEOC complaint creates no right on the part of an employee to miss work, fail to perform assigned work, or leave work without notice.” (quoting Brown v. Ralston Purina Co., 557 F.2d 570, 572 (6th Cir. 1977))); Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (upholding dismissal of employee for past conduct and for an “abusive attempt” to have a witness change her story). However, the Commission disagrees with the notion that this principle should be extended to allow an employer to retaliate against an employee for positions taken or manner of advocacy in an adversarial EEO proceeding. See, e.g.,Benes v. A.B. Data, Ltd., 724 F.3d 752, 754 (7th Cir. 2013).

¹⁵ See note 4 (anticipatory retaliation can occur before any protected activity, e.g., employer policies that threaten workers with disciplinary action if they engage in protected activity, or other policies that would deter an employee from exercising an EEO right).

¹⁶ In the Commission’s view, playing any role in an internal investigation should be deemed to constitute protected participation. Otherwise, those providing information that supports the employer rather than the complainant could be left unprotected from retaliation.

¹⁷ “It is well settled that the participation clause shields an employee from retaliation regardless of the merit of his EEOC charge.” Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1004-1007 (5th Cir. 1969)); see also Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000).

¹⁸ See, e.g., Brief of the EEOC as Amicus Curiae Supporting the Appellant, Risley v. Fordham Univ., No. 01-7306 (2d Cir. filed Aug. 21, 2001), https://www.eeoc.gov/litigation/briefs/risley-v-fordham-univ (arguing that “Title VII prohibits an employer from retaliating against an employee for filing a charge with the EEOC without regard to whether the employee reasonably believed that the actions challenged in the charge violated Title VII”); EEOC Decision No. 71-1115, 1971 WL 3855 (Jan. 11, 1971) (citing Pettway, the Commission held that even though the record did not show that charging party’s allegations of race discrimination were made in bad faith, “[i]n any event, any disparate treatment accorded her because of her protestations and filing of charges is in violation of [Title VII]”).

¹⁹ Glover, 170 F.3d at 414 (concluding that the application “of the participation clause should not turn on the substance of the testimony” (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d at 1006 n.18 (5th Cir.1969))); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997) (holding anti-retaliation protection for participation is not conditioned on the type of testimony or motive of the individual, because “[c]ourts have no authority to alter statutory language”); Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) (“‘[T]here is nothing in [the participation clause’s] wording requiring that the charges be valid, nor even an implied requirement that they be reasonable.'”) (citation omitted); Pettway,411 F.2d at 1006 n.18, 1007 (holding that even “maliciously libelous statements” in an EEOC charge are protected participation); Ayala v. Summit Constructors, Inc., 788 F. Supp. 2d 703, 720-21 (M.D. Tenn. 2011) (holding that anti-retaliation protection for participation is “‘not lost if the employee is wrong on the merits of the charge, nor is protection lost if the contents of the charge are malicious and defamatory as well as wrong'” (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000))).

²⁰ Glover, 170 F.3d at 414 (“The plain language of the participation clause itself forecloses us from improvising such a reasonableness test.”).

²¹ Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that Title VII extends to protect individuals from retaliation by current, former, or prospective employers).

²² Glover, 170 F.3d at 414.

²³ Merritt, 120 F.3d at 1186 (holding that the participation clause applies even where a witness does not testify for the purpose of assisting the claimant, or does so involuntarily).

²⁴ See, e.g., Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 740 (8th Cir. 2005) (ruling that it “cannot be true that a plaintiff can file false charges, lie to an investigator, and possibly defame co-employees without suffering repercussions simply because the investigation was about sexual harassment”); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (holding that employee’s letter to the EEOC containing false, malicious statements was not protected participation).

²⁵ See, e.g., Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012) (ruling that the participation clause includes participation in internal investigations only after a charge has been filed); Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010) (holding that the participation clause does not cover internal investigations before the filing of a charge with the EEOC, but not addressing Supreme Court precedents); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999) (declining to decide whether the participation clause covers all internal investigations, and ruling that “at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation, the employee’s participation is participation ‘in any manner’ in the EEOC investigation”); see also EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover on the ground that no EEOC charge had been filed before the alleged retaliatory act, the court concluded that plaintiff’s internal sexual harassment complaint could not be protected under the participation clause).

²⁶ 555 U.S. 271, 280 (2009).

²⁷ See Brief of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, DeMasters v. Carilion Clinic,796 F.3d 409 (4th Cir. 2015) (No. 13-2278), https://www.eeoc.gov/litigation/briefs/demasters-v-carilion-clinic-medical-center; Brief of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Townsend v. Benjamin Enters., Inc., 679 F.3d 41 (2d Cir. 2012) (No. 09-0197-cv(L)), https://www.eeoc.gov/litigation/briefs/townsend-v-benjamin-enterprises-inc; Brief of the EEOC as Amicus Curiae in Support of Suggestion for Rehearing En Banc, Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) (No. 97-9229); Brief for the United States as Amicus Curiae Supporting Petitioner, Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271 (2009) (No. 06-1595), http://www.justice.gov/osg/brief/crawford-v-metropolitan-govt-nashville-amicus-merits.

²⁸ Merritt, 120 F.3d at 1186 (reasoning that “[t]he word ‘testified’ is not preceded or followed by any restrictive language that limits its reach” and it is followed by the phrase “in any manner,” indicating its intended broad sweep); United States v. Wildes, 120 F.3d 468, 470 (4th Cir. 1997) (reasoning that the statutory term “‘any’ is a term of great breadth”).

²⁹ Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federal employee’s pre-complaint contact with agency EEO Counselor is participation under Title VII).

³⁰ See, e.g., Beard v. Flying J, Inc., 266 F.3d 792, 799 (8th Cir. 2001) (holding that affirmative defense was not established where employer interviewed only alleged harasser and victim, not other employees who could have told of harassment, and where investigation ended only with a warning for the harasser to cease alleged conduct that included actions the court later characterized as “battery”); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Cir. 2001) (holding that an employer must have responded to an internal harassment complaint in a “reasonably prompt manner” to establish part of the defense).

³¹ Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276-80 (2009); see also Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (“[P]rotected conduct includes not only the filing of administrative complaints . . . but also complaining to one’s supervisors.”); EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that retaliation claim was actionable under the FLSA, as incorporated into the Equal Pay Act, for complaint to supervisor about male counterparts being paid $1/hour more); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989).

³² EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579, 580 n.8 (6th Cir. 2000)).

³³ Crawford, 555 U.S. at 276 (first emphasis added) (adopting the Commission’s position in the EEOC Compliance Manual, as quoted in Brief for the United States as Amicus Curiae).

³⁴ Id. at 279 n.3 (“[E]mployees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others.”); see also Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47-48 (1st Cir. 2010) (holding that plaintiff engaged in opposition by assisting a female scientist under his supervision in filing and pursuing an internal sexual harassment complaint, even though he did not “utter words” when he and the subordinate met with a human resources official, since his action in accompanying her “effectively and purposefully communicated his opposition to” the alleged harassment).

³⁵ See, e.g., Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (holding that complaining about discrimination against coworkers and refusing to fulfill employer’s request to gather derogatory information about those who complained was protected opposition). The Commission has challenged retaliation against individuals who complain to management about discrimination against others. See, e.g., EEOC v. Mountaire Farms, Inc., No. 7:13-CV-00182 (E.D.N.C. consent decree entered Nov. 2013) (settlement of retaliation claim against company translator who made repeated complaints to supervisors and the human resources department about incidents of mistreatment of Haitian workers at the company in comparison to non-Haitian workers).

³⁶ Crawford, 555 U.S. at 277; Collazo, 617 F.3d at 47 (ruling that employee “opposed” a supervisor’s harassment by, inter alia, speaking to the supervisor individually and eliciting a limited apology); EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (ruling that a supervisor “opposed” unlawful retaliation by refusing to sign a discriminatory negative evaluation of subordinate).

³⁷ Crawford, 555 U.S. at 277-78 (explaining that the opposition clause in Title VII extends beyond “active, consistent” conduct “instigat[ed]” or “initiat[ed]” by the employee, the Court stated that “[t]here is . . . no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”). In the Commission’s view, responding to an employer’s questions about potential discrimination is protected both as participation, see supra note 27, and as opposition.

³⁸ See, e.g., Examples 4-5 and 8, and infra note 75; see also Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (ruling that plaintiff’s letter to human resources complaining that job he sought went to a less qualified individual did not constitute ADEA opposition, because the letter did not explicitly or implicitly allege age was the reason for the alleged unfairness).

³⁹ Okoli v. City of Balt., 648 F.3d 216, 224 (4th Cir. 2011) (ruling that it was sufficient to constitute “opposition” that plaintiff complained about “harassment” and described some facts about the sexual behavior in the workplace that was unwelcome, and that she did not need to use the term “sexual harassment” or other specific terminology); EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009) (holding that allegations need not have identified all incidents of the discriminatory behavior complained of to constitute opposition because “a complaint about one or more of the comments is protected behavior”); Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (ruling that reasonable jury could conclude plaintiff “opposed discriminatory conduct” when she told her harasser, who was also her supervisor, to stop harassing her).

⁴⁰ 1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 15-20 (5th ed. 2012) (collecting cases).

⁴¹ Cf. Crawford, 555 U.S. at 276 (endorsing the EEOC’s position that communicating to one’s employer a belief that the employer has engaged in employment discrimination “virtually always” constitutes “opposition” to the activity, and stating that any exceptions would be “eccentric cases”); see, e.g., Minor v. Bostwick Labs., Inc., 669 F.3d 428, 438 (4th Cir. 2012) (holding that plaintiff’s meeting with a corporate executive to protest a supervisor’s direction to falsify time records to avoid overtime was FLSA protected activity).

⁴² See Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013) (observing that “there is no dispute that writing one’s legislator is protected conduct”); Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that employee’s complaints of sexual harassment to coworker who was a son of general manager was protected opposition); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (stating that “there is no qualification on . . . the party to whom the complaint is made known,” and it may include management, unions, other employees, newspaper reporters, or “anyone else”).

⁴³ “Although involving the police in an employment dispute will not always be considered part of the protected conduct that prohibits retaliatory action, where, as here, it allegedly derived from an effort to protect against actions that are intertwined and interrelated with alleged sexual harassment, it cannot be deemed the ‘unprofessional’ conduct for which an employee can be terminated.” Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Cir. 2007) (concluding a reasonable jury could find that university employee engaged in protected activity by involving the campus police after he was threatened and physically accosted as a result of rejecting his supervisor’s sexual advances).

⁴⁴ EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (observing that all actions of opposition to an employer’s practices constitute some level of disloyalty, and therefore in order to reach the level of being unreasonable, such opposition must “significantly disrupt[] the workplace” or “directly hinder[]” the plaintiff’s ability to perform his or her job); EEOC v. Kidney Replacement Servs.,No. 06-13351, 2007 WL 1218770, at *4-6 (E.D. Mich. 2007) (concluding that medical workers engaged in reasonable opposition when they raised their sexual harassment complaints directly to the onsite supervisor at the correctional facility to which their employer had assigned them, even though they were in effect raising a complaint to their employer’s customer).

⁴⁵ See, e.g., Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981) (holding that picketing in opposition to employer’s alleged unlawful practice was protected activity under Title VII even though employer’s business suffered); EEOC Dec. 71-1804, 3 FEP 955 (1971) (holding that right to strike over unlawful discrimination cannot be bargained away in union contract).

⁴⁶ Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Crown Zellerbach, 720 F.2d at 1013-14 (holding that employer violated Title VII when it imposed disciplinary suspension in retaliation for public protest letter by several employees of an “affirmative action award” given to a major customer; reasoning that even though the letter could potentially harm the employer’s economic interests, it was a reasonable manner of opposition because it did not interfere with job performance).

⁴⁷ See, e.g., Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000) (collecting cases).

⁴⁸ See supra notes 40-45.

⁴⁹ EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (finding that plaintiff had engaged in protected activity when she informed her employer she intended to file a sex discrimination charge, even though she later changed her mind), cert. denied, 522 U.S. 1147 (1998).

⁵⁰ See infra notes 55-64 and accompanying textfor extended discussions of this issue.

⁵¹ Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397, 399, 401 (11th Cir. 1989) (describing “the sheer number and frequency” of plaintiff’s “mostly spurious” discrimination complaints as “overwhelming,” and holding that the manner of opposition was not reasonable).

⁵² Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1392 (8th Cir. 1988) (noting that district court characterized employee’s attempts to persuade coworker to revise witness statement she had provided as “grossly persistent,” “disruptive,” “almost frantic,” and “bizarre”).

⁵³ See, e.g., Coutu v. Martin Cty. Bd. of Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (ruling that evidence showed plaintiff was terminated for spending an inordinate amount of time in “employee advocacy” activities and failing to complete other aspects of her personnel job).

⁵⁴ Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) (“[A] plaintiff [in an opposition case] does not need to prove that the employment practice at issue was in fact unlawful under Title VII . . . [A plaintiff] must only show that she had a “reasonable belief” that the employment practice she protested was prohibited under Title VII.”); see also Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) (“Limiting retaliation protections to those individuals whose discrimination claims are meritorious would ‘undermine[] Title VII’s central purpose, the elimination of employment discrimination by informal means; destroy[] one of the chief means of achieving that purpose, the frank and non-disruptive exchange of ideas between employers and employees; and serve[] no redeeming statutory or policy purposes of its own.'”). For this reason, if an employer takes a materially adverse action against an employee because it concludes that the employee has acted in bad faith in raising EEO allegations, it is not certain to prevail on a retaliation claim, since a jury may conclude that the claim was in fact made in good faith even if the employer subjectively thought otherwise. Cf. Sanders v. Madison Square Garden, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Sept. 5, 2007) (“[I]f an employer chooses to fire an employee for making false or bad accusations, he does so at his peril, and takes the risk that a jury will later disagree with his characterization.”); see also supra note 18.

⁵⁵ Cf. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc) (holding that “an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress”); see also Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012) (holding that complaints of sexual harassment were protected opposition even though there was insufficient evidence to prove the alleged harassment was based on sex, because “[a] plaintiff does not need to have an egg-shell skull in order to demonstrate a good faith belief that he was victimized”); Ayala v. Summit Constructors, Inc., 788 F. Supp. 2d 703, 719-22 (M.D. Tenn. 2011) (ruling that even where a reasonable good faith requirement applies, an allegation is not unreasonable or made in bad faith simply because it may have overstated the concerns or misinterpreted the reasons for the challenged action).

⁵⁶ See, e.g., Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999) (holding that when applying the reasonable belief standard to a witness, “the relevant conduct . . . is only the conduct that person opposed, which cannot be more than what she was aware of”). Because witnesses typically may have observed only part rather than all of the events at issue in a case, the Commission has argued that the reasonable belief standard need not be applied to third-party witness testimony. See Brief of EEOC as Appellant, EEOC v. Rite Way Serv., Inc., 819 F.3d 235 (5th Cir. 2016) (No. 15-60380), https://www.eeoc.gov/litigation/briefs/eeoc-v-rite-way-service-inc.

⁵⁷ See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 194-95 (3d Cir. 2015) (ruling that plaintiff’s complaint to school principal about his off-hand comment that many of the teachers looked old enough to be grandparents was not protected activity, but that it was protected activity when she sent a letter to human resources complaining about age discrimination in which she noted the “grandparent” comment, increased scrutiny, being referred to as “old school” by colleagues, lack of assistance in disciplining her students, negative evaluations, the principal questioning students about the plaintiff’s pedagogy, and his failure to inform her about her teaching status until after the new school year started despite multiple requests for information); Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 48 (1st Cir. 2010) (“[T]he challenged conduct [in Breeden] amounted to a single, mild incident or offhand comment, such that no reasonable person could have believed that this conduct violated Title VII.”); Byers v. Dall. Morning News, 209 F.3d 419, 428 (5th Cir. 2000) (ruling that employee’s complaint of reverse discrimination was objectively unreasonable absent any supporting evidence).

⁵⁸ Wasek, 682 F.3d at 470-71.

⁵⁹ 524 U.S. at 764 (emphasis added). Such complaints play a critical role in EEO compliance and enforcement, because typically “if employers and employees discharge their respective duties of reasonable care, unlawful harassment will be prevented and there will be no reason to consider questions of liability.” EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.

⁶⁰ Faragher, 524 U.S. at 807.

⁶¹ Boyer-Liberto, 786 F.3d at 282.

⁶² Id. at 282-83 (quoting Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001) (holding that employee could not pursue harassment claim where she waited until more incidents occurred before complaining); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 267 (4th Cir. 2001) (holding that an employee’s “generalized fear of retaliation does not excuse a failure to report . . . harassment”)).

⁶³ Boyer-Liberto, 786 F.3d at 282, 268 (“[A]n employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone.”); see also Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (explaining that a plaintiff need only have a “sincere and reasonable belief” that she was opposing an unlawful practice, so the conduct complained of need not have been persistent or severe enough to be unlawful, but need only “fall[] into the category of conduct prohibited by the statute”); Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Cir. 2007) (reasoning that the Faragher-Ellerth “design works only if employees report harassment promptly, earlier instead of later, and the sooner the better”).

⁶⁴ This view, which extends beyond the holding in Boyer-Liberto, was advocated by the Commission in its amicus brief filed in that case. See, e.g., EEOC’s Brief as Amicus Curiae Supporting Appellant’s Petition for Rehearing en banc, Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (No. 13-1473) (arguing that “employees engage in protected opposition for retaliation purposes if they complain about racially offensive conduct that would create a hostile work environment if repeated often enough”), https://www.eeoc.gov/litigation/briefs/boyer-liberto-v-fontainebleau-corp. The Commission has long disagreed with cases that find no protection from retaliation for employees complaining of harassment because it is not yet “severe or pervasive” or could not be reasonably viewed as such.

⁶⁵ For example, asserting in a retaliation case that an employee’s complaints related to sexual orientation discrimination should be deemed protected activity in light of the EEOC’s interpretation of Title VII, the Commission explained: “To hold otherwise would require discrimination victims or witnesses – usually ‘lay’ persons – to master the subtleties of sex-discrimination law before securing safe harbor in the broad remedial protections of Title VII’s anti-retaliation rule.” Brief of EEOC as Amicus Curiae in Support of Panel Rehearing, Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014) (No. 12-1723), https://www.eeoc.gov/litigation/briefs/muhammad-v-caterpillar-inc.

⁶⁶ Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10 (EEOC July 15, 2015), https://www.eeoc.gov/decisions/0120133080.pdf; see also Brief of EEOC as Amicus Curiae, Evans v. Ga. Reg’l Hosp., No. 15-15234 (11th Cir. filed Jan. 11, 2016), https://www.eeoc.gov/litigation/briefs/evans-v-georgia-regional-hospital. A number of courts have since agreed with the EEOC’s position that Title VII’s prohibition on sex discrimination encompasses a prohibition on sexual orientation discrimination. See e.g., Isaacs v. Felder Servs., 2015 WL 6560655, at *3 (M.D. Ala. Oct. 29, 2015); Videckis v. Pepperdine Univ., 2015 WL 8916764, at *8 (C.D. Cal. Dec. 15, 2015) (Title IX case); cf. Roberts v. UPS, 115 F. Supp. 344, 363-68 (E.D.N.Y. 2015) (construing state law); but see Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 WL 4039703, at *6-14 (7th Cir. July 28, 2016). Yet protection against retaliation for opposing sexual orientation discrimination is not limited to those jurisdictions that have agreed with the EEOC. An individual is protected from retaliation for opposing practices that discriminate based on sexual orientation even if a court has not adopted the EEOC’s position on sexual orientation discrimination. See, e.g., Birkholz v. City of New York, No. 10-CV-4719 (NGG)(SMG), 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) (“If opposition to sexual-orientation-based discrimination was not protected activity, employees subjected to gender stereotyping would have to base their decision to oppose or not oppose unlawful conduct on a brittle legal distinction [between sexual orientation and sex discrimination], a situation that might produce a chilling effect on gender stereotyping claims.”). Similarly, if an employee requested that an employer provide her with light duty due to her pregnancy, as provided to other employees for other reasons, the request would constitute protected activity based on a reasonable good faith belief, even if the legal application of the rules is new or the facts of her employer’s workplace may not be fully known to her. See generally EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues (2015), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues.

⁶⁷ See Brief for the Secretary of Labor and the Equal Employment Opportunity Commission as Amici Curiae in Support of Plaintiff-Appellant, Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292) (rejecting the so-called “manager rule” adopted by some courts to require that managers must “step outside” a management role and assume a position adverse to the employer in order to engage in protected activity), https://www.eeoc.gov/litigation/briefs/rosenfield-v-globaltranz-enterprises; DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) (holding, in a case of opposition by an Employee Assistance Program counselor on behalf of an employee client, that “the ‘manager rule’ has no place in Title VII jurisprudence,” and stating: “Nothing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description or that Congress intended to excise a large category of workers from its anti-retaliation protections.”); Warren v. Ohio Dep’t of Pub. Safety, 24 F. App’x 259, 265 (6th Cir. 2001)(same); Rangel v. Omni Hotel Mgmt. Corp, No. SA-09-CV-0811, 2010 WL 3927744, at *5 (W.D. Tex. Oct. 4, 2010) (same).

⁶⁸ Even where courts have applied a different rule for human resources personnel or others whose job duties involve processing internal EEO complaints, a number of courts have concluded that such employees are nonetheless protected when they “step[] outside” that role. See, e.g.,Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (holding that an internal EEO director does not engage in protected opposition by fulfilling a job duty to report or investigate other employees’ discrimination complaints, but that actively supporting other employees in exercising Title VII rights, personally complaining, or being critical of discriminatory employment practices is opposition); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (reasoning that “an employer cannot be permitted to avoid liability for retaliation simply by crafting equal employment policies that require its employees to report unlawful employment practices,” and holding that even assuming arguendo that a “step outside” rule applies under Title VII, plaintiff stepped outside his managerial duties when he supported a subordinate in lodging and pursuing a sexual harassment complaint and was therefore protected).

⁶⁹ Warren, 24 F. App’x at 265 (holding that plaintiff, who served as senior EEO compliance officer and Chief of Human Resources, engaged in protected opposition when she met with the employer’s counsel to report alleged mishandling of discrimination matters, but finding she was terminated for her own mismanagement and not in retaliation for her reports).

⁷⁰ As discussed in § II-A.1., because participation and opposition have some overlap, the Commission and the Solicitor General have long taken the view that raising complaints, serving as a voluntary or involuntary witness, or otherwise participating in an employer’s internal complaint or investigation process can be seen as participation. If they are characterized as opposition, the analysis here would apply.

⁷¹ Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 279-80 (2009) (holding that participating in an employer’s internal investigation of another worker’s harassment complaint was protected activity because opposition extends beyond “active, consistent” conduct “instigat[ed]” or “initiat[ed]” by the employee). In Crawford, the court explained “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question,” id. at 277-78, and that any other rule would undermine the Faragher-Ellerth framework because “prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others,” id. at 279. See also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (holding that Title VII’s anti-retaliation provision protects a person who volunteers to testify on behalf of a coworker, even if the person is never actually called to testify). Cf. EEOC v. Creative Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 276742, at *8 (D. Ariz. Jan. 15, 2010) (ruling that Title VII’s retaliation provision protects a worker whether “poised to support coworker’s discrimination claim, dispute the claim, or merely present percipient observations”).

⁷² Crawford, 555 U.S. at 277 (“[W]e would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”); EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (ruling that personnel director’s refusal to fire employee because of his race constituted protected activity because he was opposing the employer’s discriminatory policy of excluding African-American employees from important positions).

⁷³ “A manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it.” Foster v. Time Warner Entm’t. Co., 250 F.3d 1189, 1994 (8th Cir. 2001) (holding that customer service manager engaged in protected opposition activity where she repeatedly questioned her new super­visor about how a revised sick leave policy affected ADA accommodations previously granted to an employee with epilepsy whom she supervised, and then refused to implement the new policy by continuing to allow the employee to work flexible hours); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 581 (6th Cir. 2000) (concluding that action taken by a university vice president, in his capacity as an affirmative action official, to respond to hiring decisions that he believed discriminated against women and minorities, constituted protected opposition under Title VII).

⁷⁴ Foster, 250 F.3d at 1194-95; see also supra notes 67-69.

⁷⁵ EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (holding that demanding a supervisor stop harassment is protected opposition, i.e., when one “resists or confronts the supervisor’s unlawful harassment”);Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding that a reasonable jury could conclude plaintiff engaged in protected opposition when she told her supervisor to stop harassing her); EEOC v. IPS Indus., Inc., 899 F. Supp. 2d 507, 521 (N.D. Miss. 2012) (ruling that employee’s informally confronting her supervisor about his insinuations that the employee was involved in a relationship with a coworker, telling the supervisor not to touch her again after he reached around behind her, and informing him that she would only return to work if he stopped touching her, were not “mere rejections” of inappropriate sexual conduct, but rather constituted protected opposition); Ross v. Baldwin Cty. Bd. of Educ., No. 06-0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) (“It would be anomalous, and would undermine the fundamental purpose of the statute, if Title’s VII’s protections from retaliation were triggered only if the employee complained to some particular official designated by the employer.”). These protections could also extend to non-verbal resistance to an unwanted sexual advance by a supervisor, such as walking away or removing the supervisor’s hand from the employee’s body.

⁷⁶ McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling that employee stated cause of action for retaliation when he alleged that his employer retaliated against him for failing to prevent subordinate from filing a sexual harassment complaint).

⁷⁷ Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (citing rulings from every federal judicial circuit holding that requests for reasonable accommodation are protected activity); 9 Lex K. Larson, Employment Discrimination § 154.10, at p. 154-105 & n. 25 (2d ed. 2014) (“In addition to the activities specifically protected by the statute, courts have found that requesting reasonable accommodation is a protected activity.”).

⁷⁸ EEOC, Compliance Manual Section 12: Religious Discrimination § 12-V.B (2008) (“EEOC has taken the position that requesting religious accommodation is protected activity.”), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination; see also Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007) (upholding jury verdict finding that an employee’s complaints about required participation in activities violate his religious beliefs constituted protected activity under Title VII); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003).

⁷⁹ Soileau v. Guilford of Me., 105 F.3d 12, 16 (1st Cir. 1997); see also A.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 698 & n.4 (6th Cir. 2013).

⁸⁰ Women’s Bureau, DOL, Pay Secrecy Fact Sheet (Aug. 2014), http://www.dol.gov/wb/media/pay_secrecy.pdf (reviewing examples of state laws enacted between 1982 and 2014 addressing employer pay secrecy policies).

⁸¹ Id. (noting results from 2010 Institute for Women’s Policy Research/Rockefeller Survey of Economic Security).

⁸² See Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (majority and dissent agreeing that gathering information or evidence from coworkers is protected activity, though reaching different conclusions about whether employee’s manner of opposition was reasonable on facts of the case); EEOC v. Kallir, Phillips, Ross, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975) (holding that employee’s discreet request to one of the company’s clients with whom he worked, asking for written statement describing work duties in support of his pending EEO claim, was protected activity).

⁸³ EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that female temporary custodian stated a retaliation claim under the Equal Pay Act for alleged actions in response to her oral complaint to a supervisor that male counterparts earned $1/hour more); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288-89 (6th Cir. 2012) (ruling that plaintiff’s oral complaint to the Director of Human Resources that she was “treated differently than younger employees” was protected opposition).

⁸⁴ E.O. 11246, as amended, applies to companies with federal contracts or subcontracts in excess of $10,000. See 41 C.F.R. § 60-1.5.

⁸⁵ See Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions, 80 Fed. Reg. 54,934, 54,944 (Sept. 11, 2015).

⁸⁶ Regulations promulgated by OFCCP implementing E.O. 13665 can be found on OFCCP’s pay transparency web page at http://www.dol.gov/ofccp/PayTransparency.html (last visited Aug. 18, 2016). Contractors and individuals with questions about the OFCCP pay transparency protections or how to file a complaint may contact OFCCP by calling 1-800-397-6251, sending an e-mail to [email protected], or contacting the nearest OFCCP office. More information is available on the OFCCP web site at http://www.dol.gov/ofccp/.

⁸⁷ Under the OFCCP regulations, the two circumstances in which disclosures can be made are: (1) the disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, or in accordance with the contractor’s legal duty to furnish information; or (2) the disclosure occurs during discussions with management officials, or while using the contractor’s internal complaint process, about possible disparities involving another employee’s compensation, or the disclosure was of compensation information received through means other than access granted through their essential job functions.

⁸⁸ See, e.g., NLRB v. Main St. Terrace Care, 218 F.3d 531 (6th Cir. 2000) (concluding that employer violated the NLRA by imposing a rule prohibiting pay discussions, even though it was unwritten and not routinely enforced, and improperly fired plaintiff because, in violation of oral instruction by managers, she discussed wages with coworkers to determine whether they were being paid fairly); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (9th Cir. 1993) (“As [the employer] concedes, an unqualified rule barring wage discussions among employees without limitations as to time or place is presumptively invalid under the Act.”); Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding that employer’s rule broadly prohibiting wage discussions was an unfair labor practice under the NLRA, because “wage discussions can be protected activity” and “an employer’s unqualified rule barring such discussions has the tendency to inhibit such activity”).

⁸⁹ See supra §§ II-A.1. (discussion of participation as protected activity) and II-A.2. (discussion of opposition as protected activity). However, the anti-retaliation provisions are not a “catch-all” providing rights to anyone who has challenged his or her employer in the past for any reason. See, e.g., Rorrer v. City of Stow, 743 F.3d 1025, 1046-47 (6th Cir. 2014) (holding that plaintiff’s prior testimony in arbitration of non-EEO claims was not protected activity that could support subsequent ADA retaliation claim).

⁹⁰ Kelley v. City of Albuquerque, 542 F.3d 802, 820-21 (10th Cir. 2008) (concluding that attorney who represented city in EEO mediation was protected against retaliation when his opposing counsel, who subsequently was elected mayor, terminated his employment); Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (holding that white employees who complain about a racially hostile work environment against African-Americans are protected against retaliation for their complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (holding that Title VII protects plaintiff against retaliation even where plaintiff did not himself engage in protected activity, but rather his coworker engaged in protected activity on his behalf).

⁹¹ Supra note 54; see also Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Cir. 1988) (“[I]t is not necessary to prove that the underlying discrimination in fact violated Title VII in order to prevail in an action charging unlawful retaliation . . . . If the availability of that protection were to turn on whether the employee’s charge were ultimately found to be meritorious, resort to the remedies provided by the Act would be severely chilled.”).

⁹² See, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (holding that plaintiff engaged in protected activity when she informed her supervisor that she intended to file charge); Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982) (ruling that writing a letter to employer and union threatening to file EEOC charge is protected); cf. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (ruling that federal employee’s contact with agency EEO Counselor is participation under Title VII).

⁹³ For example, in McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001), a firefighter’s initiation of an investigation into a union president’s sexual assault of a union secretary was held to be “protected activity.” The court rejected a lower court ruling that “protected activity” only includes opposition to unlawful employment practices by the same covered entity that engaged in the alleged retaliatory acts. In rejecting this argument, the court adopted the EEOC’s position that “[a]n individual is protected against retaliation for participation in employment discrimination proceedings involving a different entity.” Id. This is especially true, the court held, where “the two employers have a relationship that may give one of them an incentive to retaliate for an employee’s protected activities against the other.” Id. at 284-85; see also Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant’s frequent reference to plaintiff’s sex discrimination action against prior employer warranted inference that defendant’s refusal to hire was retaliatory).

⁹⁴ Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997) (ruling that plaintiff may sue a former employer for retaliation when it provided a negative reference to a prospective employer for whom plaintiff subsequently applied to work, because Title VII’s definition of employee lacks any “temporal qualifier”).

⁹⁵ See, e.g., infra Example 19; Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-80 (2d Cir. 2005) (holding that evidence could support a finding that plaintiff’s job offer was rescinded after his prospective employer was told by his former employer that plaintiff, who had been listed as a favorable witness in a coworker’s EEO litigation, “had a lawsuit pending” against the company); Hillig v. Rumsfeld, 381 F.3d 1028, 1033-35 (10th Cir. 2004) (holding that plaintiff may allege an unjustified negative job reference was retaliatory and need not prove that she would have received the job absent the reference); see also L.B. Foster Co., 123 F.3d at 753-54; Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, No. 02-CV-1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (holding that informing a prospective employer about an employee’s lawsuit constitutes an adverse action under Title VII, because “surely” the plaintiff’s former supervisor “knew or should have known” that, by revealing the fact that the plaintiff had sued her former employer, “he could severely hurt her chances of finding employment”).

⁹⁶ Krouse v. Am. Sterilizer, 126 F.3d 494, 502 (3d Cir. 1997).

⁹⁷ Anderson v. Phillips Petrol., 722 F. Supp. 668, 671-72 (D. Kan. 1989).

⁹⁸ 42 U.S.C. § 12203(a).

⁹⁹ Fogleman v. Mercy Hosp., 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee who did not engage in protected activity could nevertheless challenge retaliation where employer took adverse action because it erroneously believed plaintiff had engaged in protected activity); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding that FLSA’s anti-retaliation provision prohibits retaliation by employer where employer believed employee had engaged in protected activity, even though employee had not done so).

¹⁰⁰ See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“Title VII’s substantive [discrimination] provision and its antiretaliation provision are not coterminous” because the “scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm . . . . Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act’s primary objective depends.”). Thus, it also extends beyond the scope of “adverse actions” involving federal employees that are subject to the jurisdiction of the Merit Systems Protection Board.

¹⁰¹ Id. at 69.

¹⁰² See, e.g., Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (holding that a high school teacher stated a claim for retaliation based on the combination of “his assignment of notoriously absent students, his temporary paycheck reduction, and the District’s failure to notify him of a curriculum change”); Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App’x 587, 599 (6th Cir. 2009) (holding that although some of the incidents alone may not rise to the level of an adverse action, “the incidents taken together might dissuade a reasonable worker from making or supporting a discrimination charge”).

¹⁰³ Burlington N., 548 U.S. at 68; see, e.g.,Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (rejecting the employer’s argument that the challenged action was not sufficiently adverse under Burlington Northern since it did not dissuade the plaintiff herself from reporting sexual harassment again when it recurred, the court also commented that this argument was “entirely unconvincing, since it would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint”).

¹⁰⁴ Burlington N., 548 U.S. at 69 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)).

¹⁰⁵ Id. (citation omitted).

¹⁰⁶ Id. at 71-73.

¹⁰⁷ Id. at 63, 69; see also Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment for employer on retaliation claim because jury could find defendants’ threats to ruin plaintiff’s family and marriage, and opposition to her receipt of employment benefits, constituted adverse actions that would have dissuaded a reasonable person from engaging in protected activity).

¹⁰⁸ Notwithstanding that the federal sector retaliation provision of Title VII refers to “personnel actions affecting employees or applicants,” the Commission views all employees covered by EEOC-enforced anti-retaliation provisions to be protected from any action that would likely deter a reasonable person from engaging in protected activity. See Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,501-43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134; see, e.g., Caldwell v. Johnson, 289 F. App’x 579, 589 (4th Cir. 2008) (applying Burlington Northern and expressly rejecting different standards for retaliation claims for non-federal versus federal sector employers).

¹⁰⁹ Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing that suspensions and terminations “are by their nature adverse”).

¹¹⁰ Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169 (1st Cir. 2015) (holding that a supervisor’s multiple threats to fire plaintiff were materially adverse and thus actionable as retaliation, but plaintiff failed to prove they were motivated by her protected activity).

¹¹¹ Millea v. Metro-N. R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (applying the Title VII retaliation standard for materially adverse action in an FMLA retaliation claim, the court held that a letter of reprimand is materially adverse even if it “does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently”); Ridley v. Costco Wholesale Corp., 217 F. App’x 130, 135 (3d Cir. 2007) (upholding a jury verdict finding that although demotion was not retaliatory, the post-demotion transfer to warehouse, counseling notices for minor incidents, and failure to investigate complaints about these actions were unlawful retaliation).

¹¹² Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that transfer of high level executive without any loss of pay was actionable as retaliation where he was relegated to a non-supervisory role and non-substantive duties).

¹¹³ See, e.g., Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (holding that the “denial of a deserved rise in performance rating” can be actionable as retaliation); Porter v. Shah, 606 F.3d 809, 817-18 (D.C. Cir. 2010) (ruling that on the facts of the particular case an interim performance of “borderline acceptable” was not materially adverse because it was delivered orally, with no written record placed in the plaintiff’s personnel file, and the evaluation was superseded by the plaintiff’s year-end review); see also Halfacre v. Home Depot, U.S.A., Inc., 221 F. App’x 424, 432-33 (6th Cir. 2007); Parikh v. N.Y.C. Transit Auth., No. 06 CV 3401(NG)(KAM), 2010 WL 364526, at *9 (E.D.N.Y. Feb. 2, 2010).

¹¹⁴ See, e.g., O’Neal v. City of Chi., 588 F.3d 406, 409-10 (7th Cir. 2009) (holding that alleged repetitive reassignments negatively affecting plaintiff’s eligibility to be promoted from sergeant to lieutenant on the police force constituted materially adverse action); Billings v. Town of Grafton, 515 F.3d 39, 53 (1st Cir. 2008) (ruling that although the plaintiff’s own displeasure, standing alone, would be insufficient to render an action materially adverse, there was sufficient evidence for a jury to find that in retaliation for complaining about sexual harassment she had been subject to a materially adverse action when she was transferred to an objectively less prestigious position that reported to a lower-ranked supervisor, provided much less contact with the Board of Selectmen, the Town, and members of the public, and required less experience and fewer qualifications).

¹¹⁵ Loya v. Sebelius, 840 F. Supp. 2d 245, 252-53 (D.D.C. 2012) (holding that it was materially adverse to move plaintiff’s office to a different building in the same complex, where the move isolated her from her colleagues, made it difficult for her to complete her job duties, diminished her standing as a senior staff member, contributed to a loss of responsibilities, cut off her access to administrative support services, forced her to travel between buildings in dangerously wet or icy walking conditions, and made it difficult for her to manage her diabetes).

¹¹⁶ Millea, 658 F.3d at 165; see also Alvarado v. Metro. Transp. Auth., No. 07 Civ. 3561(DAB), 2012 WL 1132143, at *13 (S.D.N.Y. Mar. 30, 2012) (holding that retaliation claim could proceed to trial where “Letter of Instruction” was permanently placed in the plaintiff’s personnel file and could be used in future disciplinary actions); cf. White v. Dep’t of Corr. Servs., 814 F. Supp. 2d 374, 388 (S.D.N.Y. 2011) (ruling that although a counseling memo and negative comment in a performance evaluation may not be adverse actions in themselves, a jury could find them actionable when considered in combination with a notice of discipline).

¹¹⁷ Halfacre, 221 F. App’x at 433 (citing Burlington N., 548 U.S. at 69-70, in which the Supreme Court stated that excluding an employee from a weekly training lunch “might well deter a reasonable employee from complaining”); see also Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011) (“Although Pérez-Cordero did not suffer a tangible employment detriment in response to this protected activity, such as a retaliatory firing, we have previously held that the escalation of a supervisor’s harassment on the heels of an employee’s complaints about the supervisor is a sufficiently adverse action to support a claim of employer retaliation.”).

¹¹⁸ Burlington N., 548 U.S. at 63; see, e.g.,Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Cir. 2008) (ruling that setting fire to employee’s car and threatening to “kill the bitch” was actionable as retaliation); Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999) (ruling that falsely telling police that employee had a gun and had threatened to shoot supervisor, resulting in police injuring employee so severely he was unable to work for six weeks, was actionable as retaliation); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (ruling that filing false criminal charges was actionable as retaliation).

¹¹⁹ Burlington N., 548 U.S. at 63-64.

¹²⁰ Szeinbach v. Ohio State Univ., 493 F. App’x 690, 694-96 (6th Cir. 2012) (holding that retaliatory accusations of misconduct in plaintiff’s academic research, made in emails to a journal editor and professors at other universities, could be materially adverse); Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (affirming a jury verdict in plaintiff’s favor, the court held that comments by a union president on television program regarding plaintiff being unfit for her job and implying she would pay a price for her discrimination claim constituted retaliation).

¹²¹ Greengrass v. Int’l Monetary Sys., Ltd., 776 F.3d 481, 485-86 (7th Cir. 2015) (ruling that employer’s listing of employee’s name in public filing with the Securities and Exchange Commission was materially adverse); Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (ruling that a statement to the press that employee had stolen paychecks could be found to be materially adverse action, because “though not affecting the terms or conditions of Lore’s employment, [the statement] might well have dissuaded a reasonable police officer from making a complaint of discrimination”); see also Berry, 74 F.3d at 986 (holding that instigating criminal theft and forgery charges against former employee who filed EEOC charge was retaliatory).

¹²² Burlington N., 548 U.S. at 66-67 (citing with approval the example of an employer’s lawsuit against an employee held actionable under the NLRA’s anti-retaliation provision, as explained in Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983)).

¹²³ Compare Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for jury existed as to material adversity when, among other things, plaintiff went from supervising 20 employees to supervising none), and Burke v. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002) (denying employer’s motion for summary judgment on retaliation claim challenging removal of supervisory duties from “supervisory computer systems analyst”), with Higbie v. Kerry, 605 F. App’x 304, 308-11 (5th Cir. 2015) (ruling that employer’s moving of employee’s desk and modifying his role were not materially adverse actions because employee had only an intermittent supervisory role in any event).

¹²⁴ The Commission has repeatedly filed lawsuits based on such facts. EEOC v. Queen’s Med. Ctr., Civil Action No. 01-CV-00389 (D. Haw. consent decree entered July 2002) (settlement of retaliation case alleging that shortly after employee lodged an internal complaint, employer contacted the Immigration and Naturalization Service to retract its support for his permanent visa application, resulting in the INS initiating a hearing into his immigration status and therefore requiring him to hire a lawyer to defend his lawful resident status; case was settled for $150,000 for emotional distress damages); EEOC v. Holiday Inn Express, No. 0:00-cv-0034 (D. Minn. consent decree entered Jan. 11, 2000) (employer who allegedly reported workers to INS after they engaged in protected activity under NLRA and Title VII settled discrimination and retaliation claims for $72,000; INS deferred deportation action for two years to allow the workers time to be witnesses in case); see also Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1340-41 (S.D. Fla. 2015) (citing Title VII case law, the court held that a factfinder could conclude an employer engaged in retaliation under the FLSA where it knew about plaintiff’s immigration status but waited until after he engaged in protected activity to “hold it . . . over his head”); cf. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1050-51 (D. Minn. 2007) (denying summary judgment for the employer, the court ruled that the timing of a human resources director asking plaintiff to submit valid I-9 documentation two days after reporting sexual harassment could be found by a jury to support an inference of retaliatory motive for her subsequent termination).

¹²⁵ See, e.g., EEOC v. Bd. of Governors, 957 F.2d 424, 430 (7th Cir. 1992).

¹²⁶ Thompson v. North American Stainless, LP, 562 U.S. 170, 178 (2011).

¹²⁷ Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268-70 (11th Cir. 2010) (ruling that terminating plaintiff sooner than planned due to her protected activity was actionable as retaliation); Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that canceling a symposium in honor of retired employee who filed ADEA charge was retaliatory).

¹²⁸ Roncallo v. Sikorski Aircraft, Inc., 447 F. App’x 243 (2d Cir. 2011).

¹²⁹ Fanning v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling that a brief delay in payment of $300 quarterly health benefit refund representing less than 2% of plaintiff’s monthly income was not materially adverse). By contrast, the Commission has challenged retaliatory withholding of funds due to an employee. See, e.g., EEOC v. Cardiac Sci. Corp., Civil Action No. 2:13-cv-01079 (E.D. Wis. consent decree entered July 2014) (settlement of retaliation claim based on employer’s alleged refusal to provide severance payments and benefits and payments previously promised because it learned employee had previously filed an EEOC charge).

¹³⁰ Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (“[A]n employer who retaliates cannot escape liability merely because the retaliation falls short of its intended result.”).

¹³¹ Hashimoto, 118 F.3d at 676; see also L.B. Foster, 123 F.3d at 754 n.4 (ruling that a retaliatory job reference violated Title VII even though it did not cause failure to hire, because such a consequence is relevant only to damages, not liability).

¹³² Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986).

¹³³ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (“A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”).

¹³⁴ EEOC, Compliance Manual Section 2: Threshold Issues § III-A.4 (2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues (“Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”). The Commission has filed both individual and systemic lawsuits based on such facts. See, e.g., EEOC v. DeCoster Farms, No. 3:02-cv-03077-MWB (N.D. Iowa consent decree entered Sept. 2002) (EEOC alleged that supervisors sexually harassed and raped female workers, especially those of Mexican and other Hispanic national origin – some of whom were undocumented at the time – and threatened to deport and terminate any of the victims who cooperated with EEOC; consent decree provided $1.525 million; undocumented victims were granted deferred status and visas); EEOC v. Quality Art, No. 2:00-cv-01171-SMM (D. Ariz. consent decree entered Aug. 2001) (case involved sexual and national origin harassment; employer threatened to report employees to the INS and subsequently contacted INS in an attempt to secure arrest and/or deportation; consent decree provided $3.5 million to victims); supra note 124 (collecting additional cases).

¹³⁵ Hicks v. Baines, 593 F.3d 159, 167-70 (2d Cir. 2010) (applying Burlington Northern standard to find punitive scheduling was materially adverse on the facts of the case). A materially adverse action could also include, for example, moving a retail employee who has a straight schedule to “on-call” scheduling, or revoking a previously-approved flexible schedule. See, e.g., Washington v. Illinois Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (holding that because employee’s flex-time schedule was previously approved to care for her child with a disability, its revocation could be materially adverse given the financial and other consequences that resulted).

¹³⁶ Cf. Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (ruling it was materially adverse to publicize an employee’s EEO complaint to her colleagues and to “bury[ ] her in work,” “perhaps alone but certainly in combination”).

¹³⁷ See, e.g., Martinelli v. Penn Millers Ins. Co., 269 F. App’x 226, 230 (3d Cir. 2008) (ruling that after Burlington Northern, an employee claiming “retaliation by workplace harassment” is “no longer required to show that the harassment was severe or pervasive”); EEOC v. Chrysler Grp., LLC, No. 08-C-1067, 2011 WL 693642, at *8-11 (E.D. Wis. Feb. 17, 2011) (holding that reasonable jury could conclude employees were subjected to unlawful retaliation under Burlington Northern standard when human resources supervisor verbally harassed them by screaming and pounding his fists on the table while threatening termination if they filed grievances). The Commission also articulated this position in its 2012 final rulemaking to update federal sector regulations. See Federal Sector Equal Employment Opportunity, 77 Fed. Reg. 43,498, 43,502 (July 25, 2012) (codified at 29 C.F.R. § 1614), https://federalregister.gov/a/2012-18134.

¹³⁸ Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011); see also EEOC v. Fred Fuller Oil Co., No. 13-cv-295-PB, 2014 WL 347635, at *6 (D.N.H. Jan. 31, 2014) (denying motion to dismiss retaliation claim involving close friend of individual who had filed EEOC charge).

¹³⁹ Thompson, 562 U.S. at 174.

¹⁴⁰ McGhee v. Healthcare Servs. Grp., Inc., No. 5:10cv279/RS-EMT, 2011 WL 818662, at *2-3 (N.D. Fla. Mar. 2, 2011) (ruling that plaintiff could proceed with a Title VII retaliation claim based on allegations that after his wife filed an EEOC charge against her employer, plaintiff was fired from his job with a company that held a contract with his wife’s employer, allegedly at the request of his wife’s employer).

¹⁴¹ Thompson, 562 U.S. at 178.

¹⁴² Tolar v. Cummings, No. 2:13-cv-00132-JEO, 2014 WL 3974671, at *12 (N.D. Ala. Aug, 11, 2014).

¹⁴³ Thompson, 562 U.S. at 178.

¹⁴⁴ Id. at 177 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (internal quotation marks omitted)); see also Brief for the United States as Amicus Curiae Supporting Petitioner at 16-23, Thompson v. N. Am. Stainless, LP., 562 U.S. 170 (2011) (No. 09-291) (arguing petitioner was “aggrieved” by his own dismissal, which was the employer’s means of retaliating against his fiancée for alleging sex discrimination), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/28/thompsonbr_sctmerits.pdf.

¹⁴⁵ Staub v. Proctor Hosp., 562 U.S. 411, 418-22 (2011) (applying “cat’s paw” theory to a retaliation claim under the Uniformed Services Employment and Reemployment Rights Act, which is “very similar to Title VII”; holding that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable”); Zamora v. City of Hous., 798 F.3d 326, 333-34 (5th Cir. 2015) (applying Staub, the court held there was sufficient evidence to support a jury verdict finding retaliatory suspension); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (applying Staub, the court upheld a jury verdict in favor of white workers who were laid off by management after complaining about their direct supervisors’ use of racial epithets to disparage minority coworkers, where the supervisors recommended them for layoff shortly after workers’ original complaints were found to have merit).

¹⁴⁶ Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013) (holding that “but-for” causation is required to prove Title VII retaliation claims raised under 42 U.S.C. § 2000e-3(a), even though claims raised under other provisions of Title VII only require “motivating factor” causation).

¹⁴⁷ Preponderance of the evidence (more likely than not) is the evidentiary burden under both causation standards. Id. at 2534; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 n.4 (2009) (emphasizing that under the “but-for” causation standard “[t]here is no heightened evidentiary requirement”).

¹⁴⁸ Nassar, 133 S. Ct. at 2534; see also Kwan v. Andalex Grp., 737 F.3d 834, 846 (2d Cir. 2013) (“‘[B]ut-for’ causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of a retaliatory motive.”). Circuit courts analyzing “but-for” causation under other EEOC-enforced laws also have explained that the standard does not require “sole” causation. See, e.g., Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (explaining in Title VII case where the plaintiff chose to pursue only but-for causation, not mixed motive, that “nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action”); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 316-17 (6th Cir. 2012) (ruling that “but-for” causation required by language in Title I of the ADA does not mean “sole cause”); Alaniz v. Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant’s challenge to Title VII jury instructions because “a ‘but for’ cause is simply not synonymous with ‘sole’ cause”); Miller v. Am. Airlines, Inc.*, 525 F.3d 520, 523 (7th Cir. 2008) (“The plaintiffs do not have to show, however, that their age was the sole motivation for the employer’s decision; it is sufficient if age was a “determining factor” or a “but for” element in the decision.”).

¹⁴⁹ Burrage v. United States, 134 S. Ct. 881, 888-89 (2014) (citing State v. Frazier, 339 Mo. 966, 974-975, 98 S.W. 2d 707, 712-713 (1936)).

¹⁵⁰ See, e.g., Nita H. v. Dep’t of Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 n.6 (EEOC July 16, 2014) (holding that the “but-for” standard does not apply in federal sector Title VII case); Ford v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010) (holding that the “but-for” standard does not apply to ADEA claims by federal employees).

¹⁵¹ See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnel actions affecting federal employees who are at least 40 years of age “shall be made free from any discrimination based on age” prohibits retaliation by federal agencies); see also 42 U.S.C. § 2000e-16(a)(providing that personnel actions affecting federal employees “shall be made free from any discrimination” based on race, color, religion, sex, or national origin).

¹⁵² In private sector and state and local government employment cases, EEOC gathers evidence and determines whether, based on its investigation, there is “reasonable cause” to believe that retaliation or discrimination occurred.

¹⁵³ For example, in one case the employer told the employee being terminated that “[y]our deposition was the most damning to [the employer’s] case, and you no longer have a place here. . . .” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1190-91 (11th Cir. 1997).

¹⁵⁴ See, e.g., Henry v. Wyeth Pharm., 616 F.3d 134, 148 (2d Cir. 2010) (ruling that jury instruction was erroneous where it did not allow finding that decisionmakers had requisite knowledge of plaintiff’s protected activity based on evidence they acted under instructions from management officials who had knowledge).

¹⁵⁵ Compare Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that plaintiff failed to adduce any evidence that employer knew he had refused English class because he believed employer’s suggestion to attend was discriminatory), with Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1267 (10th Cir. 2009) (finding that given employer’s awareness of plaintiff’s charge, that plaintiff’s supervisor was specifically named as a transgressor in the charge, and that the supervisor lowered the plaintiff’s performance evaluation the day after the employer received the charge, a reasonable jury could infer that the supervisor was aware of the charge when he lowered the evaluation).

¹⁵⁶ Brown v. City of Jacksonville, 711 F.3d 883, 892-94 (8th Cir. 2013) (concluding that employer was not liable for retaliation based on evidence that termination was based on plaintiff’s mistreatment of coworkers and inefficient work performance); Hypolite v. City of Hous., 493 F. App’x 597, 606 (5th Cir. 2012) (concluding that evidence showed suspension was not motivated by retaliatory animus but by employee’s using e-mail improperly and making racial slurs).

¹⁵⁷ Compare Hoppe v. Lewis Univ., 692 F.3d 833, 843 (7th Cir. 2012) (concluding that employer had legitimate, non-retaliatory reason for firing aviation ethics teacher because she had never worked in aviation field, lacked formal aviation training, and had no relevant degrees, regardless of her past experience teaching philosophy and positive student reviews), with Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (holding that employer’s assertion that applicant for promotion was “not sufficiently suited” was vague and, if left unexplained, might not even qualify as a nondiscriminatory reason).

¹⁵⁸ E.g., Fields v. Phillips Sch. of Bus. & Tech., 870 F. Supp. 149, 153-154 (W.D. Tex.), aff’d mem., 59 F.3d 1242 (5th Cir. 1994) (concluding that evidence established that negative reference for plaintiff, a former employee, was based on the former supervisor’s personal observations of plaintiff during his employment and contemporary business records documenting those observations).

¹⁵⁹ Cf. Thomas v. iStar Fin., Inc., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling that providing a neutral reference was not evidence of retaliatory motive where such references are consistent with established company policy).

¹⁶⁰ Some courts have used the concept of a “convincing mosaic” to describe the combination of different pieces of evidence to show retaliatory intent. This is not a legal requirement or a causation standard, but rather simply a description of combining different pieces of evidence to satisfy the applicable causation standard. Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3–4 (7th Cir. Aug. 19, 2016); Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012) (holding that “[w]hen all of these pieces are viewed together and in [plaintiff’s] favor, they form a mosaic that is enough to support the jury’s finding of retaliation,” even though challenged termination occurred five years after he filed his ADEA lawsuit); see also Nita H. v. Dep’t of Interior, EEOC Petition No. 0320110050, 2014 WL 3788011, at *10 (EEOC July 16, 2014) (adopting and applying the “convincing mosaic” concept, the Commission rejected the employer’s contention that this requires plaintiff to make all the evidence fit in an interlocking pattern with no spaces).

¹⁶¹ Ortiz, 2016 WL 4411434, at *3–4.

¹⁶² See, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1, 8-9 (1st Cir. 2006) (concluding that jury could infer causation from evidence that harassment by supervisors intensified shortly after plaintiff filed an internal complaint); Hossaini v. W. Mo. Med. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996) (holding that a reasonable factfinder could infer that defendant’s explanation for plaintiff’s discharge was pretextual where defendant launched investigation into allegedly improper conduct by plaintiff shortly after she engaged in protected activity).

¹⁶³ Abbott v. Crown Motor Co., 348 F.3d 537 (6th Cir. 2003) (ruling that causation shown notwithstanding 11-month interim because supervisor stated his intention to “get back at” those who had supported the discrimination allegations); Kachmar v. SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997) (ruling that district court erroneously dismissed plaintiff’s retaliation claim because termination occurred nearly one year after her protected activity; when there may be reasons why adverse action was not taken immediately, absence of immediacy does not disprove causation); Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

¹⁶⁴ See, e.g., Muñoz, 671 F.3d at 56-57 (concluding that evidence supported jury’s finding that plaintiff, a doctor, was discharged in retaliation for ADEA lawsuit filed 5 years earlier, where the evidence showed plaintiff was fired for common conduct for which others were not disciplined, he was not given an opportunity to defend himself, and had been threatened years earlier by one of the decisionmakers that if he filed the suit he would never work at the hospital or in Puerto Rico again); Rao v. Tex. Parks & Wildlife Dep’t, No. 4:13-cv-0726, 2014 WL 1846102, at *3 (S.D. Tex. May 8, 2014) (holding that denial of promotion could be shown to be in retaliation for complaint filed three years earlier, where decisionmaker said to plaintiff “you didn’t do anything wrong, but you filed that complaint”).

¹⁶⁵ Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008); Goldsmith v. Babgy Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008); Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir. 2009).

¹⁶⁶ See, e.g., Burnell v. Gates Rubber Co., 647 F.3d 704, 709-10 (7th Cir. 2011) (concluding that evidence of plant manager’s statement to African-American employee that he was “playing the race card” was sufficient to deny employer’s motion for summary judgment on claim of retaliatory termination for race discrimination complaints); Abbott, 348 F.3d at 544 (ruling that summary judgment for employer on retaliation claim was improper where evidence showed supervisor stated he would “get back at those who had supported the charge of discrimination,” told plaintiff he was being discharged for bringing “the morale of the shop down,” and told the managing partner he fired plaintiff because he had put his nose in other people’s business by testifying in support of coworker’s discrimination allegations).

¹⁶⁷ See, e.g., Burnell, 647 F.3d at 709-10 (ruling summary judgment for employer improper based on evidence that included statements made to plaintiff); Abbott, 348 F.3d at 544 (ruling summary judgment for employer improper based on statements made both to plaintiff and to others).

¹⁶⁸ Spengler v. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Cir. 2010) (concluding that evidence showed that plaintiff, who was discharged after raising an age discrimination allegation, was a valuable employee and that the rule pursuant to which he was terminated had been selectively enforced).

¹⁶⁹ See supra notes 113 and 116.

¹⁷⁰ Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 851 (7th Cir. 2007) (ruling that inconsistent explanations by employer presented issue for jury); Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011) (ruling that pretext could be shown because between the EEOC investigation and the litigation, the employer shifted its explanation for plaintiff’s termination from reduction in force to mutual decision and then to violation of a company policy).

¹⁷¹ See, e.g., Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (concluding that although supervisor contended that his actions were designed simply to give credential review committee a legitimate assessment of complaints against plaintiff, the evidence showed he overstated his objections and failed to disclose that he had been the subject of several prior complaints by plaintiff, which could lead the jury to conclude that his motives were attributable to discriminatory and/or retaliatory animus); Spengler, 615 F.3d at 495 (ruling that pretext could be shown because employer’s explanation that seasonal employees are discharged after 12 months was inconsistent with testimony that the policy was only applied in the event of a production slowdown, which had not occurred); Franklin v. Local 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d 508, 521 (8th Cir. 2009) (ruling that defendant’s reading aloud at union meetings of legal bills identifying employees who had filed discrimination charges against the union may have been retaliatory, since degree of detail disclosed was not necessary given proffered non-retaliatory explanation that it was done in order to obtain member approval for expenditures).

¹⁷² As discussed supra note 145, an employer can be liable under “cat’s paw” theory where an individual due to retaliatory animus influenced a decisionmaker who did not know of the protected conduct or animus.

¹⁷³ See, e.g., Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009) (holding that plaintiff failed to show that interviewers who scored his oral interview were aware of his previous discrimination complaints).

¹⁷⁴ See Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 547 F. App’x 484, 489-90 (5th Cir. 2013) (affirming summary judgment for the employer on a Title VII retaliation claim, the court applied Nassar and concluded that the employee failed to show that retaliatory motive was the “but-for” cause for her discharge, not merely a motivating factor).

¹⁷⁵ The ADA interference provision uses the same language as a parallel provision in the Fair Housing Act, and Congress intended it to be interpreted in the same way. H.R. Rep. No. 101-485, pt. 2, at 138 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 421 (“The Committee intends that the interpretation given by the Department of Housing and Urban Development to a similar provision in the Fair Housing Act . . . be used as a basis for regulations for this section.”). The National Labor Relations Act (NLRA) also contains an interference provision with similar language to the ADA provision. See 29 U.S.C. § 158(a)(1) (making it unlawful under the NLRA for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [the Act]”).

¹⁷⁶ See Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding that in comparison to the retaliation provision, the interference provision protects a broader class of persons against less clearly defined wrongs; demands that plaintiff stop taking her medications and perform duties contrary to her medical restrictions or be forcibly retired constituted actionable interference).

¹⁷⁷ The EEOC regulation implementing the interference provision additionally includes the term “harass.” See 29 C.F.R. § 1630.12(b) (providing it is “unlawful to coerce, intimidate, threaten, harass, or interfere with any individual in the exercise or enjoyment of, or because the individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part”). The inclusion of the term “harass” in the regulation is intended to characterize the type of adverse treatment that may in some circumstances violate the interference provision.

¹⁷⁸ Brown, 336 F.3d at 1192-93 (ruling that the ADA’s interference provision is not so broad as to prohibit “‘any action whatsoever that in any way hinders a member of a protected class,'” and observing that supervisor’s statement that other employees were complaining about plaintiff’s long lunches and early departures did not alone violate the interference provision) (citation omitted).

¹⁷⁹ See Brief of the EEOC as Amicus Curiae in Support of the Plaintiff-Appellant, Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003) (No. 01-16938).

¹⁸⁰ 42 U.S.C. § 2000e-5(f)(2) (“Whenever a charge is filed . . . and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission . . . may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge.”); 42 U.S.C § 12117 (ADA); 42 U.S.C. § 2000ff-6(a) (GINA).

¹⁸¹ EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984); see also EEOC v. City of Bowling Green, 607 F. Supp. 524, 527 (W.D. Ky. 1985) (granting preliminary injunction preventing defendant from mandatorily retiring police department employee because of his age; although plaintiff could have collected back pay and been reinstated at later time, he would have suffered from inability to keep up with current matters in police department and would have suffered anxiety or emotional problems due to compulsory retirement).

¹⁸² Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986).

¹⁸³ Id. (ruling that the employer’s retaliation would have a chilling effect on other employees’ willingness to exercise their rights or testify for plaintiff, and therefore would cause irreparable harm); cf. EEOC v. Peters’ Bakery, 13-CV-04507-BLF (N.D. Cal. preliminary injunction issued July 2015) (ruling that harassment about the pending claim, combined with the likelihood of success on the merits, may support entry of a preliminary injunction prohibiting an employer from terminating an employee during the pendency of a federal EEO lawsuit, because “permitting [the individual] to be terminated under such circumstances may well have a chilling effect on other employees who might wish to file charges with the EEOC, and thus could interfere with the EEOC’s mission”).

¹⁸⁴ See EEOC v. Evans Fruit Co., No. CV-10-3033-LRS, 2010 WL 2594960, at *1-2 (E.D. Wash. June 24, 2010) (granting EEOC’s request for preliminary injunction while the investigation continues) (citing the likelihood of irreparable injury if alleged witness tampering was allowed to continue, in that “(a) the Commission’s prosecution of its case is likely to be chilled; (b) the Commission’s investigation of retaliation charges now pending . . . is likely to be chilled; and (c) current and past . . . employees are likely to be deterred from exercising their rights under Title VII”).

¹⁸⁵ Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999).

¹⁸⁶ The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes compensatory and punitive damages for retaliation claims under both the EPA and the ADEA. See Moore v. Freeman, 355 F.3d 558, 563-64 (6th Cir. 2004); Moskowitz v. Trs. of Purdue Univ., 5 F.3d 279, 283-84 (7th Cir. 1993).

¹⁸⁷ Compare Edwards v. Brookhaven Sci. Assocs., 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (ruling that compensatory and punitive damages for retaliation are available under the ADA), and Lovejoy-Wilson v. NOCO Motor Fuels, Inc., 242 F. Supp. 2d 236, 240-41 (W.D.N.Y. 2003) (same), with Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264-70 (9th Cir. 2009) (ruling that compensatory and punitive damages are not available for ADA retaliation), and Kramer v. Banc of Am. Sec., 355 F.3d 961, 964-66 (7th Cir. 2004) (same). Several appellate courts, without analyzing the availability of compensatory damages, have affirmed awards to plaintiffs who have prevailed in retaliation claims under the ADA. See, e.g.,Salitros v. Chrysler Corp., 306 F.3d 562, 570 (8th Cir. 2002); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248-49 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298, 314-15 (2d Cir. 1999).

¹⁸⁸ See Brief of the EEOC as Amicus Curiae in Support of Plaintiff-Appellee Cross-Appellant, Mascarella v. CPlace Univ. SNF, No. 15-30970 (5th Cir. filed June 10, 2016), https://www.eeoc.gov/litigation/briefs/mascarella-v-cplace-university-0.

¹⁸⁹ Although some courts have held that state government employers may have sovereign immunity from retaliation claims by individuals for money damages under the ADA, see, e.g., Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001), such employers are still subject to suit by the U.S. government, which can obtain full relief including damages for the individual. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001); United States v. Miss. Dep’t of Pub. Safety, 321 F.3d 495, 499 (5th Cir. 2003). Therefore it is in the interest of such employers to take the same care as all others to comply with retaliation prohibitions.

¹⁹⁰ A number of these practices were developed from testimony and discussion at the EEOC’s Meeting on Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention, held on June 17, 2015. Written witness statements, as well as a transcript and video of the meeting, are available at https://www.eeoc.gov/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention.