EEOC Releases Formal Guidance on Unlawful Retaliatory Conduct in the Workplace
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EEOC Releases Formal Guidance on Unlawful Retaliatory Conduct in the Workplace

By Jonathan H. Krol

October 2016 - After an extended public comment period, the Equal Employment Opportunity Commission (“EEOC”)—which is charged with enforcing federal employment discrimination laws—recently issued its final Enforcement Guidance on Retaliation and Related Issues.  The Guidance replaces the EEOC’s 1998 compliance manual on the topic.  While the Guidance itself is not legally-binding, it gives context to the statutes that govern employment retaliation, and it also provides insight into the EEOC’s interpretation of—and focus on—related issues.

Federal laws prohibit employers from taking adverse employment actions against employees who engage in protected activity, including conduct that may discourage employees from doing so.  Not surprisingly, the legal landscape has changed significantly since the EEOC last published on the topic.  Supreme Court decisions over the past decade have taken an expansive view on the definition of protected activity and the scope of retaliatory conduct.  The Guidance identifies and adopts this approach, noting that relevant statutory terms are “broad,” “unqualified,” and “expansive,” with “great deference” given to the EEOC’s interpretation of said statutes.  Because of this liberal view, it is wise for employers to take a measured approach when addressing protected activities or when engaging in conduct that could be viewed as retaliatory. 

The EEOC cites retaliation as the most frequently alleged unlawful conduct filed with the EEOC (nearly 45% of charges contain such a claim).  The document addresses retaliation under each of the statues enforced by the EEOC (such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act).  Among other topics, it discusses: 

  • employee activities protected by the law;
  • remedies for retaliation claims; and
  • examples of employer conduct that may constitute unlawful retaliation.

According to the EEOC, the Guidance is aimed at summarizing and clarifying the law to help prevent retaliation.  To help digest the lengthy (64-page), often-dense Guidance, the EEOC has issued two user-friendly resource documents: a Q&A publication to provide basic overview of common points of interest, and a short Small Business Fact Sheet that condenses the main points into an easy-to-read format. These can be used to help employees and employers understand their rights and responsibilities. 

If you would like a copy of the Guidance or have any questions regarding discrimination, retaliation, or other employment issues, please feel free to contact one of our Employment Practices Liability Group Members.