EEOC Publishes Proposed Enforcement Guidance on Retaliation

By Emma L. Melton

The U.S. Equal Employment Opportunity Commission (EEOC) has released proposed Enforcement Guidance on Retaliation and Related Issues.  This proposed guidance provides insight as to how the EEOC interprets applicable law and hints at the areas that may receive increased focus going forward.

Existing federal employment laws prohibit employers from retaliating against applicants or employees for exercising rights protected by fair employment practice laws. This protected activity includes an employee’s opposition to a practice believed to be unlawful, such as complaining about discrimination or refusing an order believed to be discriminatory. It also includes participation in an employment discrimination proceeding, such as submitting a complaint, filing a charge of discrimination, or participating in an investigation of discrimination.

Retaliation claims may be brought under every law that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and others. The percentage of retaliation charges has increased significantly in recent years, constituting about 42% of charges filed with the EEOC in 2014, making it the most frequently alleged violation by complainants. Importantly, retaliation may be found even when the underlying claim of discrimination is ruled to be without merit. For example, if an employee files a complaint erroneously alleging sexual harassment in the workplace, but is fired because she filed the complaint, she could be successful in a claim of retaliation, despite the fact that no harassment occurred.

The proposed guidance does little to change current law.  It does, however, update prior guidance published in 1998.  After defining retaliation and outlining the three elements of a retaliation claim, the guidance provides an updated overview of relevant case law. The guidance also expands on the examples of retaliation given in the 1998 publication, and provides examples of both lawful employer action and unlawful retaliation. In addition to updating these sections, the proposed guidance includes a new section with five “best practices” for employers to implement to minimize the likelihood of retaliation violations.  These best practices are:

  • Designing and implementing written employer policies that include clear examples of both legal and illegal behavior and a reporting mechanism for potential or perceived retaliation;
  • Providing training on anti-retaliation policies for all employees;
  • Providing support for managers and supervisors to improve responses to complaints of retaliation;
  • Implementing a follow-up procedure to check in with employees after a complaint has been filed; and
  • Designating an individual to review proposed adverse employment decisions before action is taken.

The EEOC is requesting public input during the 30-day comment period ending February 24.  The proposed guidance may be viewed here.