EEOC Issues Guidance on Retaliation

Sep 1 2016 - Discrimination - Gail Cecchettini Whaley

guidance on retaliation EEOC final

New EEOC guidance is focused on retaliation prevention.

This week, the Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues. The final guidance was issued after a period of public comment that started in January.

Federal and state law both prohibit employers from taking adverse action against employees or job applicants who assert their right to be free from discrimination and harassment in the workplace. Among other things, employees who complain, participate in investigations, resist harassing conduct or ask questions about fair pay are all protected.

Retaliation claims have continued to rise, and retaliation is the number one complaint seen by the agency. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by the EEOC in FY 2015.

This new federal guidance is aimed at retaliation prevention. EEOC Chair Jenny R. Yang said “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The guidance addresses retaliation under each of the statutes enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA) and the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

In addition to the enforcement guidance, the EEOC also created a question-and-answer publication that summarizes the guidance document and a Small Business Fact Sheet that condenses the major points in the guidance.

California protections against retaliation are also strong. Don’t forget that new California regulations (effective April 1, 2016) make significant changes to employer obligations and emphasize the affirmative duty to prevent harassment, discrimination and retaliation in the workplace.

Training for supervisors on what constitutes retaliation and on your policy against retaliatory practices is essential. Best practices also include carefully reviewing discipline and termination decisions that involve individuals who participated in a complaint of unlawful workplace conduct and consulting legal counsel.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber provides an Employee Handbook Creator which contains a mandatory harassment, discrimination and retaliation prevention policy. The Employee Handbook Creator is available in both English and Spanish. Members can learn more about retaliation and employee handbook policies in the HR Library. Not a member? See how CalChamber can help you.

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