On August 25, 2016, the Equal Employment Opportunity Commission (EEOC) published its Enforcement Guidance on Retaliation and Related Issues. The EEOC’s new enforcement guidance is critical for all employers because it states clearly the EEOC’s intention to more vigorously enforce federal anti-retaliation laws. It also provides employers with some helpful guidance for avoiding liability for retaliation claims.
The Role of the EEOC
The EEOC enforces the nation’s federal EEO laws, all of which include anti-retaliation provision, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Section 501), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).
“Protected Activity” — Participation and Opposition
Under existing law, an employer cannot retaliate against an employee for engaging in a “protected activity.” One type of “protected activity” is participation. According to the EEOC, an individual is protected from retaliation for having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Protected “participation” activity includes filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination made illegal by federal EEO laws.
Another type of protected activity is opposition. An individual is protected from retaliation for opposing any practice made unlawful under the various EEO laws. According to the EEOC, protected “opposition” activity “broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination. The EEOC gave several examples of protected opposition activity in its new publication, including:
(1) Complaining or threatening to complain about alleged discrimination
(2) Providing information in an employer’s internal investigation of an EEO matter
(3) Refusing to obey an order reasonably believed to be discriminatory
(4) Advising an employer on EEO compliance
(5) Resisting sexual advances or intervening to protect others
(6) Passive resistance
(7) Requesting reasonable accommodation for disability or religion
What Should Employers Do?
How can employers protect themselves? The EEOC recommends that employers ensure that all proposed employment actions “of consequence” are “based on legitimate, non-discriminatory, non-retaliatory reasons.” According to the EEOC, employers should:
(1) Require decision makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision.
(2) Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize the need for consistency to managers.
(3) Identify and implement any process changes that may be useful, where retaliation is found to have occurred.
(4) Review any available data or other resources to determine if there are particular organizational components with compliance deficiencies.
(5) Identify causes, and implement responsive training, oversight, or other changes to address the weaknesses identified
You can read the full text of the EEOC’s Enforcement Guidance on Retaliation and Related Issues here.