While some comments by management regarding the EEO process or current complaints may be made with the intention of being funny, they can violate Title VII’s prohibition against reprisal. Managers should learn that comments about EEO complaints and the EEO process are not just inappropriate, they can lead to a finding of retaliation by the EEOC.
The Commission has held that "comments that, on their face, discourage an employee from participating in the EEO process are evidence of per se retaliation." Matt A. v. Dep’t of Veterans Affairs, 116 LRP 36497 (EEOC OFO 2016). This position stems from the Commission’s policy of considering reprisal claims with a broad view of coverage. Under this view, a claim of reprisal is “materially adverse” when it would deter a reasonable person from opposing discrimination or engaging in the EEO process, even if it may not state a claim under other bases of discrimination.
The EEOC has issued many decisions finding management engaged in per se reprisal just by making comments about the EEO process. In Complainant v. Dep’t of the Army, 115 LRP 38281 (EEOC OFO 2015), for example, a manager’s statement to a complainant that she should not contact the EEO office without first coming to him was per se reprisal. In another case, the EEOC found per se reprisal when a supervisor stated during a staff meeting that complaints would be met with discipline, that he kept good records, that no complaints would stick to him, and that, “if you do this, I will get you." Mindy O. v. Dep't of Homeland Security, 116 LRP 39944 (EEOC OFO 2016).
Even comments that are "inadvertently" chilling can be considered per se reprisal. For instance, the EEOC considered a statement made by a LR employee to the complainant “as a friend” that her EEO complaint would polarize the office was per se reprisal. Woolf v. Dep’t of Energy, 109 LRP 53793 (EEOC OFO 2009). In another case, disclosing a complainant’s EEO activity to her coworkers as a “result of unfortunate errors” nevertheless constituted per se reprisal. Candi R. v. Envtl. Prot. Agency, 118 LRP 39902 (EEOC OFO 2018).
It may also constitute per se reprisal if a manager makes comments that would reasonably deter an employee from requesting a reasonable accommodation. For instance, a statement that an employee could not request a reasonable accommodation because accommodations were to help people to do their job and not to change their time on duty constituted per se reprisal. Harland B. v. Dep’t of the Treasury, 116 LRP 1556 (EEOC OFO 2015).
Nevertheless, not every questionable comment constitutes per se retaliation. For example, in Ashley H. v. Dep’t of Homeland Sec., 117 LRP 48224 (EEOC OFO 2017), the Commission found that statements, “you’re not going to file on me, are you?,” “[the] process is a length one,” and “[I've] never lost an EEO case,” did not constitute per se reprisal. The Commission emphasized that this management official also commended the complainant for exercising her right to file and standing up for what she believed in. The EEOC has also held that a supervisor’s mere acknowledgment that a grievance was filed after the supervisor removed some of the complainant’s duties was not per se reprisal. Rhonda H. v. Broad. Bd. of Governors, 119 LRP 2962 (EEOC OFO 2018).
It can be difficult for managers to navigate the appropriate response to employees participating in the EEO process, opposing discrimination, or requesting reasonable accommodations. Even passing comments can be determined to be per se reprisal by the EEOC. Thus, to avoid liability under Title VII, supervisors must ensure that their comments are not intended to or reasonably interpreted to be deterring EEO activity.