Are your Policies in Line with the EEOC’s Updated Retaliation Guidance?

The Equal Employment Opportunity Commission (“EEOC”) recently issued updated guidance on workplace retaliation.  Specifically titled Enforcement Guidance on Retaliation and Related Issues, it is the first update since 1998 reflecting how the EEOC views, and will move to enforce, laws prohibiting workplace retaliation.

The updated guidance is in response to the exponential increase in workplace retaliation claims, which currently comprise of about forty-five percent (45%) of all charges filed and, according to the EEOC, “is the most frequently alleged basis of discrimination.”

The guidance addresses retaliation for the myriad of laws enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act.  The retaliation guidance is extensive, covering a number of important topics, including:

  • The type of employee activity protected from retaliation.
  • The analysis for reviewing the evidence and determining if it could support retaliation.
  • The remedies available for retaliation.
  • The rules against interference with the exercise of rights under the ADA.
  • Specific examples of employer actions that may amount to retaliation.

The guidance provides much needed clarity on the EEOC’s position, and affirms that the key to avoiding retaliation exposure or defending against retaliation claims boils down to understanding how retaliation claims are triggered.  Given this guidance, now is the time for employers to ensure minimum exposure by:

  • drafting and/or reviewing all EEO policies and procedures, including anti-retaliation provisions;
  • training employees and supervisors on how to recognize and handle situations relating to retaliation, discrimination and harassment;
  • conducting workplace investigations and/or responding to a charge when confronted with a retaliation, discrimination or harassment matter; and
  • Consulting in advance with employers regarding planned employment actions to ensure they are based on a legitimate, nondiscriminatory reason.

For assistance with retaliation issues or any other workplace policies and procedures, contact Rinke Noonan employment attorney Chad A. Staul.

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