EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues

This week, the Equal Employment Opportunity Commission (“EEOC”) issued its long anticipated final Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This fifty-seven (57) page document includes twenty-three (23) pages of footnotes and provides detailed guidance on both legal and practical issues associated with claims of retaliation.  Simultaneously, the EEOC issued a Question and Answer publication that summarizes the Guidance document and a Small Business Fact Sheet that covers the principal points contained in the Guidance described in non-legal terms.

Beginning in fiscal year (“FY”) 2009, EEOC filings alleging retaliation surpassed race discrimination as the most frequently alleged basis of discrimination.  In FY 2015, retaliation claims were included in 44.5% of all charges received by the EEOC and in 35.7% of all charges based on Title VII.

The Guidance addresses various forms of retaliation under the laws that are enforced by the EEOC including Title VII, GINA, ADEA, EPA, ADA, and the Rehabilitation Act.  It provides numerous examples of situations that would be considered to constitute retaliation, and in some cases, situations that would not arise to that level.  The Guidance contains a “promising practices” discussion and devotes an entire section to a discussion about ADA interference claims, which are similar to but broader than retaliation claims.

In terms of legal content, the Guidance offers little that is new.  Rather, it is a comprehensive summary of the applicable legal standards updating the long-outdated EEOC Compliance Manual section on retaliation.  It does, however, contain a new emphasis on the rights of employees to discuss, complain, or inquire about compensation that is consistent with the positions taken by the National Labor Relations Board (“NLRB”) and those contained in Executive Order 11246 as amended by Executive Order 13665 (April 8, 2014).  The Guidance also emphasizes that for enforcement purposes, the EEOC will apply its interpretation of the laws even when they conflict with the holdings of lower federal courts.

A copy of the Guidance can be obtained at:

https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.  The Question and Answer fact sheet is located at: https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm, and the Small Business Fact Sheet is located at: https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm.

Whenever the EEOC issues comprehensive guidance of this sort, there is an inevitable increase in the number of charges that employees file.  We therefore recommend that all employers review their current anti-retaliation policy and consider training all managers, supervisors, and other employees on their anti-retaliation policy and commitment that retaliation will not be tolerated.

Please contact the Kullman attorney with whom you normally work should you have any questions or require additional information concerning this matter.