Claims of Retaliation Have a Broader View of Coverage than Discrimination Claims

By Deryn Sumner

Although I do represent a few federal agencies, I consider myself first and foremost an advocate for employees. But even I, upon reviewing a formal complaint from an employee, will sometimes think to myself, “How on earth can someone possibly feel aggrieved by this minor workplace slight?” And of course, under the Diaz standard set forth in Diaz v. Dep’t of Air Force, EEOC Appeal No. 05931049 (April 21, 1994), only those claims that show a harm or loss that effect a term, condition, or privilege of employment are considered adverse actions. However, this just applies to claims of discrimination. Remember that the Commission views claims of retaliation under a “broad view of coverage” and claims that might not pass muster as claims of discrimination could be found to state claims of retaliation. The Commission often cites to Section 8 of the EEOC Compliance Manual, first published in 1998 and available at http://www.eeoc.gov/policy/docs/retal.html, in support of this position. Although the terminology used in the Compliance Manual relates to the Commission’s role in investigating private sector charges of discrimination and litigating claims in federal court, the same standard – that adverse actions do not need to be “ultimate employment actions” or materially affect the terms or conditions of employment to constitute retaliation – applies to the federal sector.

There are key illustrations of this in the Commission’s regulations and case law. For example, under 29 C.F.R. 1614.107(a)(5), proposals to take a personnel action do not state a claim of discrimination, but they can state a claim of retaliation.

The Commission has held that being subject to an internal investigation does not state a claim of discrimination, as it found in Heard v. Dep’t of Justice, EEOC Appeal No. 0120092680 (August 27, 2009). However, the same incident can state a claim of retaliation, as the Commission found recently in Bryant F. v. Dep’t of Interior, EEOC Appeal No. 0120121828 (December 11, 2015). Noting prior cases where similar claims did not constitute adverse actions for purposes of establishing a claim of discrimination, including Heard, the Commission noted that retaliation claims “are not restricted to those which affect a term or condition of employment” but rather anything “that is reasonably likely to deter protected activity.”

In Tamara G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112387 (December 3, 2015), the Commission held that receiving a rating of “highly successful” could reasonably deter someone from engaging in protected activity. The Commission found that even if the rating is positive, the employee’s receipt of a lower evaluation could “create a chilling effect on an employee engaging in protected activity in the future.”

So remember, when looking at whether allegations state a claim, look at whether the allegations are being raised under a theory of retaliation and be sure to apply the correct “broader” standard. Sumner@FELTG.com