Time to Study Up: EEOC Issues New Enforcement Guidance on Retaliation

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04/27/2017

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Time to Study Up: EEOC Issues New Enforcement Guidance on Retaliation

By: Anthony Oceguera

Retaliation is the most commonly alleged claim in charges of discrimination filed with the Equal Employment Opportunity Commission (“EEOC”). In fact, according to the EEOC, retaliation claims were asserted in forty-four and a half-percent (44.5%) of all charges filed in 2015. That number is almost double the number of charges that alleged retaliation in 1997. It is not surprising then that the EEOC just put out a new Enforcement Guidance on Retaliation and Related Issues (“Guidance”). The new Guidance replaces the Retaliation section contained in its 1998 Compliance Manual and is intended as a comprehensive guide to the EEOC’s interpretation of a host of workplace retaliation issues.

The new Guidance attempts to addresses retaliation through concrete examples under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and other laws enforced by the EEOC. Notably, the Guidance is intended to serve as a reference for EEOC employees and other federal agencies tasked with investigating, adjudicating or litigating on retaliation-related issues. Additionally, where there is disagreement by the courts on how to apply retaliation claims to certain issues, or where the EEOC’s interpretation differs from the courts, the Guidance sets forth the EEOC’s own interpretation. For these reasons, the EEOC is encouraging employers to review the new Guidance in order to better understand the EEOC’s various positions on a variety of retaliation-related issues.

COUNSEL TO MANAGEMENT:

Retaliation claims, like certain wage and hour claims, are increasing and are unlikely to decrease in the foreseeable future. The types of activities which are protected activities for which employees cannot be retaliated against for participating in is also an ever growing list. For that reason, it is extremely important that employers are aware of how the main federal agency responsible for investigating these claims is interpreting various retaliation-based issues and what types of claims they are investigating. By knowing what the EEOC is looking for and modifying your Company’s human resource’s practices accordingly, your Company can minimize the chance of lawsuits.

The EEOC’s new guidance can be found on the EEOC’s website, along with a question-and-answer publication summarizing the Guidance and a short Small Business Fact Sheet condensing major points in straightforward and non-legal language.

Please contact The Saqui Law Group if you have any questions regarding the EEOC’s New Enforcement Guidance, retaliation claims generally, or if you are facing any claims of retaliation by current or former employees.

 


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