The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation.
Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.
In addition to defining retaliation and providing over thirty specific and unique examples of retaliation in the workplace – namely the types of employer actions that can be challenged as retaliation – the guidance discusses the legal standards for determining whether the employer’s action was caused by retaliation in a given case.
Significantly, the guidance also contains a section entitled “Promising Practices,” or employer best practices to minimize the likelihood of retaliation violations. Five specific recommendations to employers are highlighted in the “Promising Practices” portion of the guidance:
- Written Employer Policies. The EEOC recommends clear, plain-language written policies that provide examples of retaliation that managers may not realize are actionable, proactive steps for avoiding actual or perceived retaliation, a reporting mechanism for employee concerns about possible acts of retaliation, and clear language explaining that retaliatory actions by managers or supervisors can be subject to discipline, including termination.
- Training. The guidance recommends training of all managers, supervisors and employees on the employer’s anti-retaliation policy, including a clear message that retaliation will not be tolerated in any form. The training should be tailored to an individual workplace to address specific past incidents of actual or perceived retaliation, ensuring that employees are aware of what conduct is protected activity and providing examples of problematic situations. It is also important that the training emphasize that managers and supervisors accused of labor law violations (such as harassment or discrimination) must not respond to those accusations by imposing an adverse employment action upon the complaining employee and should offer alternative ways such situations can be handled in an EEO-compliant manner.
- Anti-Retaliation Advice and Individualized Support for Employees, Managers, and Supervisors. In the course of the investigation of any alleged EEO violation, employers should make it part of their regular practice to proactively remind all parties involved in the investigation of the employer’s anti-retaliation policy. Moreover, managers and supervisors accused of discriminatory or other actionable misconduct should be provided with guidance about how to handle personal feelings about the accusations so as to avoid taking any action that could be linked to the accusation and seen as retaliatory.
- Proactive Follow-up. A corollary to the preceding “promising practice,” an employer may want to check in with managers, supervisors and employees during the course of an EEO investigation to see if there are any concerns about potential retaliatory behavior and provide guidance as needed, in order to mitigate or even prevent a troubling situation.
- Review of Proposed Employment Actions. In the face of any alleged EEO violation, a human resources professional or high-level manager or legal counsel should review a proposed employment action involving the employee who has alleged the EEO violation, to ensure that the employment action is based on legitimate, fact-based, non-discriminatory non-retaliatory reasons. This process should also identify any need for organizational changes to eliminate compliance gaps or deficiencies and implement corrective steps.
With the EEOC’s new, comprehensive Enforcement Guidance on Retaliation and Related Issues hot off the press, now is an excellent time for employers to take a fresh look at their anti-retaliation policies and the means by which they educate and inform their employees, managers and supervisors on those policies. The many specific examples of retaliation discussed in the guidance, together with the “promising practices” articulated by the EEOC to minimize the likelihood of actionable retaliatory conduct by managers and supervisors, provide a clear directive for employers to avoid retaliation problems in the workplace.