David Garland Discusses EEOC’s New Proposed Retaliation Guidelines, in Multiple Publications

Suppose an employee believes she has not been promoted to a managerial position because of sex discrimination, the agency hypothesized. She posts on Facebook: “Anyone know a good EEOC lawyer? Need one now.” Management sees the post and shares it with HR. Less than a week later, the plaintiff is discharged. She claims it was retaliatory. But the employer alleges the termination was due to an audit that revealed the plaintiff had extensively worked unauthorized overtime and repeatedly violated company finance procedures. The documentation of these violations all lined up. So, the employee cannot prove retaliatory discharge.

But employers are skating on thin ice if they discharge someone who has made a discrimination complaint and has no documented performance problems.

“Too many managers think that they can take an adverse action against an employee who has made a baseless complaint,” according to David Garland, an attorney with Epstein Becker Green in the firm’s New York City and Newark, N.J., offices. “But even if the complaint is baseless, the employee may still have a viable retaliation claim, unless the complaint was made in bad faith or for some other illegitimate reason.”

EEOC employees investigating claims could use the guidance to connects the dots in ways unsupported by a specific case’s facts, according to David Garland, a management-side attorney at Epstein Becker Green PC.

“It is important that investigators understand what is retaliation and what isn’t, [but] what I’m concerned about is we don’t want an investigator to ... jump to conclusions,” he said.