Upsurge in retaliation claims prompts new EEOC guidelines; employers should take note, lawyer says

By Tara Mapes | Sep 21, 2016

WASHINGTON – The federal Equal Employment Opportunity Commission issued its final Enforcement Guidance on Retaliation and Related Issues late last month, replacing its 1998 Compliance Manual section on retaliation.

And employers should take note of the changes, which tighten regulations governing when employees might bring actions for illegal termination or discipline and other allegations of retaliation, a lawyer who works with employers on such issues told The Cook County Record.

Lending to its release was the upsurge in retaliation claims filed against employers in the last 18 years. 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 2015.

Since 1998, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws. The EEOC has included some of those decisions in its manual to substantiate its new interpretations and recommendations.

The notice states: “This document sets forth the Commission's interpretation of the law of retaliation and related issues. In constructing this guidance, the Commission analyzed how courts have interpreted and applied the law to specific facts. Regarding many retaliation issues, the lower courts are uniform in their interpretations of the relevant statutes.”

The Guidance echoes the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White and states that in order to prompt the retaliation protection, an action taken by an employer only needs to be seen to make a reasonable employee reluctant to complain about discrimination.

The Guidance also references the Supreme Court’s 2009 holding in Crawford v. Metropolitan Government of Nashville and Davidson County, in which employees can be protected from retaliation by their employers if they complain about unlawful employment practices or reveal unlawful employment practices during internal investigations.

Amy Puckett, an attorney with the firm of Bradley Arant Boult Cummings in Charlotte, N.C., said the Guidance itself can offer some help to employers.

“The Guidelines outline ‘Promising Practices’ that employers should implement to help reduce their risk of violations," Puckett said. "The EEOC also acknowledges, however, that adopting these practices does not guarantee an employer will not be held liable for unlawful actions. 

"These promising practices include: maintaining or creating written, plain-English retaliation policies with user-friendly examples, training management and human resources, debriefing and providing anti-retaliation advice and support after EEO allegations are made, providing follow-up and support during the course of and after an EEO matter, and reviewing of employment actions to ensure the employer remains compliant with the revised Guidance.”

Puckett said employers should recognize that a materially adverse action only needs to dissuade a reasonable employee from complaining about discrimination in order to trigger retaliation protection under the revised Guidance. 

“This materially adverse action may be work-related, (including) a discharge, transfer or negative evaluation, or non-work-related, (including) disparaging comments to the media or a civil lawsuit," Puckett said. "In fact, the revised Guidance explains that 'prohibiting only employment-related actions would not achieve the goal of avoiding retaliation' because ‘an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.’”

To assist in helping summarize the changes, the agency issued a question-and-answer publication and a small business fact sheet

“Employers should take the opportunity to familiarize themselves with the new Guidance and make sure their policies and procedures are up-to-date and compliant," Puckett said.

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Bradley Arant Boult Cummings LLP U.S. Equal Employment Opportunity Commission

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