EEOC Priorities:
Retaliation and
Interference
JESSICA A. PALMER-DENIG
TRIAL ATTORNEY - EEOC
Statutes Enforced by the EEOC

Title VII of the Civil Rights Act of 1964
(Title VII)

Pregnancy Discrimination Act (PDA)

Americans with Disabilities Act (ADA)

Equal Pay Act (EPA)

Genetic Information Nondiscrimination
Act (GINA)

Age Discrimination in Employment Act
(ADEA)

Rehabilitation Act
Charge Statistics 2013-2014

88,778 charges filed in FY 2014

Reduction in charges due to government shutdown during
reporting period: first quarter filings were down 3,000-5,000
compared to other quarters of the year

Top 3 charge bases alleged:


Retaliation under all statutes: 37,955 (42.8 percent of all charges
filed)

Race (including racial harassment): 31,073 (35 percent)

Sex (including pregnancy and sexual harassment): 26,027 (29.3
percent)
The greatest number of charges were filed in Texas (8,035),
followed by Florida (7,528) and California (6,363). Minnesota
had 981. North Dakota had 91, up from 22 in FY 2009.
Strategic Enforcement Plan (SEP)
The plan establishes a framework for achieving the EEOC's mission to
"stop and remedy unlawful employment discrimination," so that the
nation might realize the Commission's vision of "justice and equality
in the workplace."
The plan has three objectives: 1) combat employment
discrimination through strategic law enforcement; 2) prevent
employment discrimination through education and outreach; and
3) deliver excellent and consistent service through a skilled and
diverse workforce and effective systems.
SEP Priority #5
Preserving Access to the Legal System. The
EEOC will target policies and practices that
discourage or prohibit individuals from exercising
their rights under employment discrimination
statutes, or that impede the EEOC's investigative
or enforcement efforts.
Two key target areas:
1)
Retaliation
2)
Interference
Retaliation
Title VII, 42 U.S.C. § 2000e-3:
Opposition and Participation
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment … because he has opposed
any practice made an unlawful employment practice
by this subchapter [the “opposition” clause], or because
he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter [the
“participation” clause].
ADA, 42 U.S.C. § 12203: Prohibition
Against Retaliation and Coercion
(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.
ADEA, 29 U.S.C. § 623(d)
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.
EPA, 29 U.S.C. §215(a)(3) (FLSA)
(a) After the expiration of one hundred and twenty days from June
25, 1938, it shall be unlawful for any person
(3) to discharge or in any other manner discriminate against any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
related to this chapter, or has testified or is about to testify in any
such proceeding, or has served or is about to serve on an industry
committee;
Retaliation is an EEOC hot topic!

Number 1 basis of charges filed for years.

FY2014: highest percentage of retaliation
charges to date.

Broad interpretation of retaliation provisions.
What is retaliation?
Employer action that is:
1)
Materially adverse
2)
To a reasonable employee (objective standard)
A plaintiff must show that a reasonable employee would have
found the challenged action materially adverse, “which in this
context means it well might have ‘dissuaded a reasonable worker
from making or supporting a charge of discrimination.’”
Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
What kind of action?
Employer action does not have to relate to
terms and conditions of employment.
“The scope of the anti-retaliation provision extends
beyond workplace-related or employment-related
retaliatory acts and harm.”
White, 548 U.S. 53.
Examples: schedule change, exclusion from weekly
training lunch.
Forbes Magazine: 12 Most Common Workplace
Retaliation Tactics
http://www.forbes.com/pictures/fgdi45eigdm/12-most-common-retaliation-tactics

Left Out – excluded from decisions
and work activity by supervisors or
management

Cold Shoulder from other
employees

Abuse by supervisor or manager

Job Loss

No Promotion

Abuse by Coworkers

Pay Cut

Hit the Road: Relocation or
Reassignment

Downgrade/Demotion

Online Abuse

Physical Harm to Person or
Property

Harassment at Home
EEOC Publication: Facts About Retaliation
http://www.eeoc.gov/laws/types/facts-retal.cfm
Adverse actions do not include petty slights and
annoyances, such as stray negative comments
in an otherwise positive or neutral evaluation,
"snubbing" a colleague, or negative comments
that are justified by an employee's poor work
performance or history.
Retaliation: But-For Causation
Standard
“Title VII retaliation claims must be proved according to traditional
principles of but-for causation . . . [t]his requires proof that the
unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”
University of Texas Southwestern Medical Center v. Nasser, 133 S. Ct.
2517 (2013).
Higher standard than “motivating factor,” but not sole cause.
How far does protection go?
Opposition includes participating in employer’s internal
investigation, even if employee did not raise initial
complaint and no charge is filed with government
agency.
Crawford v. Metropolitan Gov’t of Nashville, 555 U.S. 271
(2009) (opposition clause protected participant in
internal sexual harassment investigation, court did not
reach participation clause).
Third parties are protected too.
“We think it obvious that a reasonable worker might be
dissuaded from engaging in protected activity if she
knew that her fiance would be fired,” and determining
plaintiff was within the “zone of interests” protected by
Title VII.
Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011)
(declining to identify a fixed class of relationships for which thirdparty reprisals are unlawful, but noting firing a close family member
will almost always meet the standard while inflicting a minor reprisal
on a mere acquaintance will almost never do so).
What if the employee opposes
something that is not unlawful?
An employee is protected from retaliation for opposing
employment actions that are not unlawful, “as long as
the employee acted in a good faith, objectively
reasonable belief that the practices were unlawful.”
Barker v. Mo. Dept. of Corrections, 513 F.3d 831 (8th Cir.
2008) (holding no protection for employee who assisted
another in filing a complaint about a comment that
women were more nurturing because it was not
objectively reasonable to believe this was unlawful
sexual harassment).
EEOC Litigation
EEOC v. Northern Star Hospitality (W.D. Wis. Sept. 2013):
Jury verdict in favor of employee terminated in
retaliation for complaining about racist display posted in
the workplace. Termination occurred just a few weeks
after complaint and no previous discipline. Seventh
Circuit affirmed on other grounds.
Litigation, Cont’d.
EEOC v. Product Fabricators, Inc., 763 F.3d 963 (8th Cir. 2014)
(holding insufficient causal connection between acknowledgement
of participation in EEOC investigation and termination later the
same day, where protected activity occurred a year prior to
termination).
EEOC v. PMT Corp., Case No. 14-cv-599 (DSD/TNL)
EEOC alleged employer pursued criminal charges against former
employee whistle-blower upon learning she was the source of the
EEOC’s allegations for investigation. EEOC pursued retaliation and
constructive discharge claims on behalf of employee. District court
held that, as company did not learn of employee’s activities until
after she left, no causal connection and no constructive discharge.
Interference
EEOC Enforcement Guidance:
An employer may not interfere with the protected right of an
employee to file a charge, testify, assist, or participate in any
manner in an investigation, hearing, or proceeding under Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et
seq., or the Equal Pay Act (EPA), 29 U.S.C. § 206(d). These employee
rights are non-waivable under the federal civil rights laws.
This position is built on two cornerstones: (a) interference with these
protected rights is contrary to public policy; and (b) the antiretaliation provisions of the civil rights statutes prohibit such conduct.
EEOC Strategic Enforcement Plan
The EEOC will also target policies and practices that
discourage or prohibit individuals from exercising their
rights under employment discrimination statutes, or
which impede the EEOC's investigative or enforcement
efforts. These policies or practices include retaliatory
actions, overly broad waivers, settlement provisions that
prohibit filing charges with the EEOC or providing
information to assist in the investigation or prosecution of
claims of unlawful discrimination, and failure to retain
records required by EEOC regulations.
http://www.eeoc.gov/eeoc/plan/sep.cfm
Recent Litigation: EEOC v. CVS
EEOC sued CVS in 2014 in the Northern
District of Illinois alleging use of overly
broad severance agreement that
interfered with employee’s right to file
charges and/or communicate and
cooperate with the EEOC.
Severance Agreement Terms
Paragraph 7: General Release of Claims
Employee hereby releases and forever discharges CVS Caremark Corp and each of its divisions
affiliates, subsidiaries, and operating companies, and the respective officers, directors,
employees, agents, affiliates of each of them (collectively, the “Released Parties” from any and
all causes of action, lawsuits, proceedings, complaints, charges, debts, contracts, judgments,
damages, claims and attorneys fees against the Released Parties, whether known or unknown,
which Employee has ever had, now has or which Employee or Employee’s heirs, executors,
administrators, successors, or assigns may have prior to the date this Agreement is signed by
Employee, due to any matter whatsoever relating to Employee’s employment, compensation,
benefits, and/or termination of Employee’s employment with CVS/Caremark (collectively, the
“Released Claims”). The Released claims include but are not limited to any claim that any of the
Released Parties violated the NLRA, Title VII, Sections 1981-88, ERIS, IRCA, ADA, ADEA, FMLA,
OSHA, any claim that any of the Released Parties violated any federal, state or local statute, law,
regulation or ordinance, any claim of unlawful discrimination of any kind, any public policy,
contract, tort, or common law claim; and any claim for costs, fees, or other expenses including
attorneys’ fees incurred in these matters. For avoidance of doubt, this release includes any claims
by Employees under the following laws: W.Va. HRA, NJ Law Against Discrimination, or the NJ
Conscientious Employee Protection Act. Notwithstanding the foregoing, this release does not
include any rights that Employee cannot lawfully waive and will not release any rights Employee
has to (a) defense and indemnification from CVS, Caremark or its insurers for actions taken by
Employee in the courts an scope of Employee’s employment with CVS Caremark; (b) claims,
actions or rights arising under or to enforce the terms of this Agreement; and (c) vested benefits
under any retirement or pension plan and/or deferred compensation plan.
Paragraph 7 again…
Employee hereby releases and forever discharges CVS Caremark Corp and each of
its divisions affiliates, subsidiaries, and operating companies, and the respective
officers, directors, employees, agents, affiliates of each of them (collectively, the
“Released Parties” from any and all causes of action, lawsuits, proceedings,
complaints, charges, debts, contracts, judgments, damages, claims and attorneys
fees against the Released Parties, whether known or unknown, which Employee has
ever had, now has or which Employee or Employee’s heirs, executors, administrators,
successors, or assigns may have prior to the date this Agreement is signed by
Employee, due to any matter whatsoever relating to Employee’s employment,
compensation, benefits, and/or termination of Employee’s employment with
CVS/Caremark (collectively, the “Released Claims”). The Released claims include
but are not limited to any claim that any of the Released Parties violated the NLRA,
Title VII, Sections 1981-88, ERIS, IRCA, ADA, ADEA, FMLA, OSHA, any claim that any of
the Released Parties violated any federal, state or local statute, law, regulation or
ordinance, any claim of unlawful discrimination of any kind, any public policy,
contract, tort, or common law claim; and any claim for costs, fees, or other expenses
including attorneys’ fees incurred in these matters. For avoidance of doubt, this
release includes any claims by Employees under the following laws: W.Va. HRA, NJ
Law Against Discrimination, or the NJ Conscientious Employee Protection Act.
Notwithstanding the foregoing, this release does not include any rights that
Employee cannot lawfully waive and will not release any rights Employee has to (a)
defense and indemnification from CVS, Caremark or its insurers for actions taken by
Employee in the courts an scope of Employee’s employment with CVS Caremark; (b)
claims, actions or rights arising under or to enforce the terms of this Agreement; and
(c) vested benefits under any retirement or pension plan and/or deferred
compensation plan.
CVS, Cont’d.
Paragraph 8

No Pending Actions; Covenant Not to Sue

Refers back to released claims

“complaint . . . Of any kind .. . . In any federal, state, or local court or
agency”

Reimburse CVS for any legal fees as a result of a breach of this paragraph

“Nothing in this paragraph shall interfere with Employee’s right to participate
in a proceeding with any appropriate federal . . . government agency
enforcing discrimination laws, nor shall this Agreement prohibit Employee
from cooperating with any such agency in its investigation . . . .”
More CVS…

Paragraph 13

Employee Covenants

Non-Disclosure of Confidential Information: includes “personnel, including the
skills, abilities, and duties of the Corporation’s employees.”


Non-Disparagement: No statements that disparage the business or reputation
of the Corporation any officer, director, or employee.


Can obtain prior written authorization of CHRO
Truthful statements required by law or for legal advice = okay
Cooperation: If employee receives an inquiry in connection with an
administrative investigation, employee must notify General Counsel and
provide reasonable cooperation.

Employee can testify truthfully in a legal proceeding
And this…

Paragraph 14

Breach of employee covenants and injunctive relief

Employee acknowledges that any breach will result in material harm to CVS
for which CVS can obtain an injunction

If the court orders any relief or damages, Employee will “promptly reimburse
the Company for all reasonable attorneys’ fees incurred by CVS in
connection with such relief.
Why did the EEOC take action?
"If you have one pound of
rights buried in 50 pounds
of prohibitions, people are
going to react to the
prohibitions. That's why we
did this.”
John Hendrickson, CDO
Regional Attorney
CVS Filed Under §707…what’s that?
Two sources of litigation authority
under Title VII:
1) Section 706 of Title VII, 42 U.S.C. § 2000e-5; and
2) Section 707 of Title VII, 42 U.S.C. § 2000e-6.
Sec. 706(f) of Title VII, 42 U.S.C. § 2000e-5
(1) If within thirty days after a charge is filed with the Commission or
within thirty days after expiration of any period of reference under
subsection (c) or (d) of this section, the Commission has been
unable to secure from the respondent a conciliation agreement
acceptable to the Commission, the Commission may bring a civil
action against any respondent not a government, governmental
agency, or political subdivision named in the charge. In the case of
a respondent which is a government, governmental agency, or
political subdivision, if the Commission has been unable to secure
from the respondent a conciliation agreement acceptable to the
Commission, the Commission shall take no further action and shall
refer the case to the Attorney General who may bring a civil action
against such respondent in the appropriate United States district
court.
Sec. 707(a), 42 U.S.C. § 2000e-6
Whenever the Attorney General has reasonable cause to believe that any
person or group of persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights secured by this subchapter, and
that the pattern or practice is of such a nature and is intended to deny the
full exercise of the rights herein described, the Attorney General may bring
a civil action in the appropriate district court of the United States by filing
with it a complaint (1) signed by him (or in his absence the Acting Attorney
General), (2) setting forth facts pertaining to such pattern or practice, and
(3) requesting such relief, including an application for a permanent or
temporary injunction, restraining order or other order against the person or
persons responsible for such pattern or practice, as he deems necessary to
insure the full enjoyment of the rights herein described.
**Sec. 707(c) transfers functions of Attorney General to EEOC.
Section 707(e)
Subsequent to March 24, 1972 [the date of enactment of the Equal
Employment Opportunity Act of 1972], the Commission shall have
authority to investigate and act on a charge of a pattern or
practice of discrimination, whether filed by or on behalf of a person
claiming to be aggrieved or by a member of the Commission. All
such actions shall be conducted in accordance with the
procedures set forth in section 2000e-5of this title [section 706].
EEOC perspective on § 707
1.
Pattern or Practice
2.
Any person – not just an employer
3.
Resistance is not limited to discrimination
4.
EEOC does not need a charge, no investigation
or conciliation – just reasonable cause
5.
Full enjoyment of rights includes right of agency
access
Court Decision: EEOC v. CVS Pharmacy, Inc.,
2014 WL 5034657 (N.D. Ill. 2014).

EEOC has authority to bring pattern or practice case without a
charge

BUT court holds EEOC must still follow procedures under § 706,
including conciliation

EEOC had not conciliated

Motion for summary judgment granted.

Court also noted that “resistance” under § 707 requires some
retaliatory or discriminatory act.
Next steps?

Notice of Appeal of district court’s decision filed for review by
Seventh Circuit

CDO Consent Decree language: The company “shall not maintain
any employment agreement that deters or interferes with
employees’ right to file charges with EEOC and FEPAs or to
participate in any investigation by EEOC or FEPAs.”

If separate release negotiated with CP, the release shall not
condition receipt of money on:

Confidentiality regarding facts or allegations underlying charge

Waiver or right to file with any agency

Prohibition on CP reapplying

Agree to non-disparagement or confidentiality
Tips for Drafters

Avoid broad waivers of the right to file charges that do not exempt
EEOC and FEPAs.

Avoid limitations on communication that do not exempt agencies:
confidentiality, non-disparagement, notice to the employer of
contact with government, cooperation requirement

Ask yourself what a reasonable person would understand regarding
provisions in employment agreements

Draw attention to carve-outs for EEOC and FEPAs so employees are
aware no prohibition on their rights
Thanks and More Information
Assistance provided by Deborah Hamilton, Trial Attorney, EEOC
Chicago District Office.
More information?
www.eeoc.gov
EEOC Minneapolis Area Office: (800) 669-4000 or TTY: (800) 669-6820