The U.S. Equal Employment Opportunity Commission (EEOC) recently released a new Proposed Enforcement Guidance on Retaliation and Related Issues. This proposed guidance specifically includes attempts to expand the scope of the participation clause and the definition of protected opposition conduct.

These proposals represent a shifting viewpoint on the part of the federal agency. Let’s take a closer look at these two particularly important elements of the proposal.

Expanding the participation clause

To be able to prove retaliation existed, plaintiffs must be able to show they engaged in “protected activities,” which consist of either “opposition activities” or “participation activities.” Under the proposed enforcement guidance, what is classified as a participation activity would be expanded.

This potentially could be troublesome for employers. Many American courts have consistently held for years that filing a complaint internally before filing an agency discrimination charge is considered an opposition activity, not a participation activity. This new guidance would represent a departure from this long-held understanding. Any internal complaint would, under the new rules, be considered participation activity—even if there has not been an EEOC charge filed.

To that end, there could be situations in which employees who make meritless or bad faith claims out of malice would still be protected from retaliation.

Defining protected opposition conduct

The new EEOC guidance proposal also implements a broader definition of opposition conduct in the world of employment law. Generally, opposition conduct is the subject of significantly more litigation than participation conduct. It involves any conduct in which an employee opposes a practice of their employer that is unlawful. This could include providing eyewitness accounts, participating in EEO proceedings and filing discrimination lawsuits.

The new definition of protected opposition conduct includes the following scenarios:

• Accompanying coworkers to human resources offices to file EEO complaints internally;
• Complaining to management about instances of discrimination against other workers;
• Refusal to follow orders from supervisors to fire a worker for discriminatory reasons;
• Engaging in any sort of slowdown of production, including picketing or petitioning; and
• Informing an employer about one’s intention to file an EEOC charge

This expanded definition of opposition activities protects all employees, including EEO advisors and HR professionals.

Employers should be aware of these changes

As the rules governing the definitions of various aspects of employer retaliation are set to change, it is important for employers in the U.S. Virgin Islands to stay up to date with this story. Employers need to understand the types of actions that could land them in legal trouble and make sure they have processes in place at all levels of their organizations to curb potential incidents of retaliation before they occur in the first place.

Reach out to an experienced labor and employment attorney for more information on EEOC guidelines and how they may affect your business or organization.

Ravinder S. Nagi is Chair of the BoltNagi Labor & Employment Practice Group. BoltNagi is a widely respected and well-established labor and employment firm proudly representing management clients throughout the U.S. Virgin Islands.