EEOC Issues New Interpretative Guidance on Retaliation and Related Issues for Federal Employment Discrimination Claims

Recently, the EEOC issued new enforcement guidance on retaliation on related issues. Federal employment discrimination laws forbid employers from punishing job candidates or employees for asserting their rights under these laws. This latest Guidance—which is basically a white paper by the EEOC, and is full of useful information, cases and examples—communicates the Commission’s position on important legal issues related to retaliation claims.

The Guidance, which replaces the last edition from 1998, is a pretty detailed resource for understanding potential employer liability for retaliation under the laws the EEOC enforces. In addition to explaining the legal standard for retaliation and giving examples from case law, the EEOC also added “Promising Practices,” which are practical tips for employers wanting to avoid getting cross-ways with the EEOC on these issues.

EEOC Provides “Promising Practices” – Practical Tips about avoiding Retaliation Claims for Employers

• The following “promising practices” are taken directly from the EEOC’s new Guidance, and provide practical tips to employers wishing to avoid the risk of retaliation claims:

• Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do.

• Employers should consider training all managers, supervisors, and employees on the employer’s written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.

• Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

• Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation.

• Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.

Additional Resources from the EEOC

The Guidance can be accessed here: https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
Small Business Fact Sheet: Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm