New EEOC Guidelines Aim To Help Prevent Workplace Retaliation Claims

Retaliation remains the most common discrimination complaint

Workplace retaliation claims are rising across all industries. About 45% of all charges filed with the US Equal Employment Opportunity Commission (EEOC) in 2016 were retaliation claims — that’s more than claims for any other type of  discrimination.

Employers now have a new resource to help create a retaliation-free work environment — the EEOC’s “Enforcement Guidance on Retaliation and Related Issues.” The updated guidance defines and addresses retaliation in its many forms under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

What is retaliation?
Retaliation occurs when an employer fires, demotes, harasses, bullies or takes other “adverse action” against an employee for filing a complaint of discrimination or participating in an internal investigation.

What actions are protected against retaliation?
The EEOC protects a number of actions by employees – current or former – or job applicants against retaliation. Examples of “protected activities” or conduct include:

• Taking part in an investigation (internal or external) of employment discrimination or harassment
• Filing or being a witness in a charge, complaint or lawsuit alleging discrimination
• Communicating with a supervisor or manager about job discrimination or harassment
• Reporting an instance of harassment to a supervisor
• Refusing to follow orders that would result in discrimination
• Resisting sexual advances or intervening to protect others
• Requesting accommodation for a disability or a religious practice
• Asking about or complaining about compensation or pay rates

The EEOC notes that employers can still discipline or terminate workers for poor performance or misconduct after the employees have filed discrimination claims.

Tips

To help employers reduce the risk of a retaliation violations and costly claims, the guidelines provide a list of “promising practices” for organizations to consider implementing.  Here are some highlights:

Develop a written anti-retaliation policy

• Maintain a written policy that makes it clear that your organization prohibits retaliation; include the policy in employee handbooks
• Provide examples of what employees can and cannot do if a co-worker files a claim of discrimination, harassment or other misconduct
• Implement a formal complaint process, including an ethics hotline where employees can report suspected incidents of retaliation
• Clearly state that retaliation against an employee or job applicant is subject to disciplinary action, up to and including termination
• Review and update policies regularly to reflect new laws and regulations

Train all managers, supervisors and employees

• Train managers, supervisors, and employees in all locations on anti-retaliation policies and procedures
• Ensure employees understand what retaliation is, how and when it can occur in your particular environment and how to properly respond to retaliation complaints
• Keep employees up to date on new rules, laws and regulations – training should not be a one-time event

Follow Up Proactively

• Address any concerns of employees, managers and witnesses during a pending EEOC claim or investigation
• Reassure employees and witnesses of the organization’s commitment to protect against retaliation
• Provide ongoing support and advice to managers and supervisors on how to handle personal feelings about discrimination allegations when performing their duties

Bottom Line
The EEOC’s guidelines provide details on the commission’s views on various forms of retaliation, along with “promising practices” to help reduce the risk of retaliation incidents and claims. Key among the practices are implementing an anti-retaliation training program, creating and enforcing a written anti-retaliation policy, providing regular training to all employees and managers and sending a strong message from top management that discrimination, harassment and retaliation are not tolerated.