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Employment Blog

New Proposed EEOC Guidelines on Retaliation

Authored by Kevin J.T. Terry
Posted on January 29, 2016
Filed under Employment

On January 21, 2016, the EEOC issued its Proposed Enforcement Guidance on Retaliation and Related Issues which is to be used as a reference for staff investigators on charges alleging retaliation and other related issues.  The stated purpose of the guidance is to replace the EEOC’s 1998 Compliance Manual on Retaliation.  While much of the 73-page document is simply a re-statement of the current state of retaliation law, there are some key areas of interest employers should be aware of.

The proposed guidance draws a distinction between a claim of retaliation based on an employee’s participation in protected activity versus a claim based on an employee’s opposition to perceived discrimination in the workplace.  This distinction is important because the EEOC interprets the “participation clause” to apply to individuals, regardless of the reasonableness of their underlying allegations of discrimination.  Conversely, the “opposition clause” applies only to those who object to practices they reasonably believe are unlawful.  This position taken by the EEOC is in contrast to the position taken by some federal courts. 

Proposed guidance also highlights the “manager rule”.  The EEOC rejects a position held by some courts that managers may engage in protective activity only to the extent they are doing so when they “step outside of their management role and assume a position adverse to the employer.”  This is an attempt by the EEOC to expand the pool of individuals who may file a retaliation claim.    

Finally, the EEOC identifies some examples of actions it would consider to be “adverse actions” which give rise to a retaliation-based claim.  Some of these examples are a bit concerning and are not recognized by courts across the country.  For example, the EEOC states that threatening reassignment, removing supervisory responsibilities, and “taking any other action that might well deter reasonable individuals from engaging in protected activity” are all adverse actions.  This third example is certainly concerning to employers.  It seems to be a catch-all provision that could be interpreted broadly by EEOC investigators and is very hard to interpret by management.

The EEOC also provides some recommended best practices for employers to adopt to “help reduce the likelihood that unlawful retaliation will occur.”  While these recommended best practices will not prevent an investigator from finding against the employer, they may be helpful when dealing with employees who may bring retaliation claims.  The following are some of the best practices provided in the EEOC proposed guidance:

  • Employers should have an anti-retaliation policy that includes actions that the employer believes to be retaliatory actions and includes instructions on how to report and resolve employee concerns about retaliation.
  • Employers should train all employees on the implemented policy.
  • When an EEO allegation is raised, employers should inform individuals of its anti-retaliation policy, it should instruct management to refrain from discussing the allegation with others, it should provide guidance to employees on avoiding actual or perceived retaliation, and it should monitor employee activity during the pendency of an EEO matter to ensure no retaliation occurs.

The EEOC guidance does not dramatically alter our understanding of how the EEOC interprets retaliation claims; however, it does put employers on notice that the EEOC will be pursuing these types of claims in the months and years to come.  Now is a good time to review company anti-retaliation policies and remind employees of their duty to refrain from retaliation against an employee who files an equal employment opportunity claim.  If you have any questions about the proposed rules or are looking for assistance in handling a discrimination claim, we are always here to help.