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EEOC Gets Tough on Retaliation, Issues Final Enforcement Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.

In its press release announcing the final Guidance, the EEOC expressed concern regarding what it sees as a growing problem with workplace retaliation. Since 1998, the percentage of retaliation charges filed with the EEOC has nearly doubled, and now represents 45% of all charges. Retaliation is the most frequent form of adverse treatment alleged by employees across all industries, including workers employed by the federal government. In light of this, the EEOC's final guidance represents a significant effort by the agency to examine, address and perhaps curb this upward trend - no doubt welcome news to employees across the country.

Retaliation in Violation of Federal Statutes

Under federal law, employees and job applicants have the right to address issues of discrimination and harassment with an employer, employment agency, or union without fear of repercussions. This can include raising the matter internally, filing a claim with the EEOC, or bringing a lawsuit. The EEOC consider these types of employee inquiries and complaints a "protected activity," and a number of the statutes enforced by the agency also prohibit retaliation against individuals who engage in protected activity:

  • Title VII of the Civil Rights Act of 1964
  • Age Discrimination Employment Act
  • Title V of the ADA
  • Section 501 of the Rehabilitation Act
  • Equal Pay Act
  • Title II of the Genetic Information Nondiscrimination Act

As the Guidance underscores, Employers are also prohibited from actions that would discourage employees from pursuing a claim with the EEOC or litigation or participating in an investigation as a witness or claimant. Additionally, employees who are "reasonably opposing" discrimination are considered to be engaging in a protected activity.

The EEOC Guidance offers several examples of protected activities in its final guidance, including:

  • Taking part in an internal or external investigation of employment discrimination and harassment
  • Communicating with a supervisor or manager about employment discrimination and harassment
  • Filing or serving as a witness in a charge, complaint, or lawsuit alleging discrimination
  • Answering questions during an employer investigation of alleged harassment
  • Refusing to follow orders that would result in discrimination
  • Resisting sexual advances, or intervening to protect others
  • Reporting an instance of harassment to a supervisor
  • Requesting accommodation of a disability or for a religious practice, or
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages *

* The final activity on the list is a new addition from the previous Guidance on retaliation and aligns with the views of other federal agencies, including the National Labor Relations Board (NLRB) and the Office of Federal Contract Compliance Programs (OFCCP), which consider the discussion of wage and salary information between employees to be protected concerted activity which should not be punishable by retaliation.

Under the law, job applicants are also protected from retaliation, as are all employees and applicants regardless of citizenship or work authorization status. The above list of conduct that is considered protected activity by the EEOC is frequently categorized into two categories: "participation" and "opposition." In certain cases, the protections afforded to those who oppose discrimination are more expansive than the current discrimination laws. for example, those who engage in reasonable, good-faith opposition to sexual orientation discrimination are protected from retaliation, even though sexual orientation is not explicitly protected under Title VII.

Types of Retaliation

Employees should know that any negative action taken against them by an employer as the direct result of a protected activity can be considered retaliation, depending on the specifics of the situation.

As emphasized in a "Small Business Fact Sheet" that accompanied the final guidance, retaliation can take many forms. Sometimes, it is as blatant as a refusal to hire, demotion, cut to compensation, denial of a bonus, or outright termination. Too often, however, retaliation results from more subtle and discreet actions, though the outcome is no less damaging to an employee.

The EEOC Guidance gives several examples of what the agency considers to unlawful, retaliatory activities, such as:

  • Reprimanding an employee or giving a performance evaluation that is lower than it should be
  • Transferring the employee to a less desirable position
  • Engaging in verbal or physical abuse
  • Making or Threatening to make reports to authorities (such as reporting immigration status or contacting the police)
  • Increasing scrutiny of the employee
  • Spreading false rumors
  • Taking actions that make the employee's work more difficult (i.e. deliberately changing work schedule so that it conflicts with an employee's family obligations)

In the Guidance, the EEOC takes an expansive view of what constitutes a "materially adverse" employment action and, consistent with the U.S. Supreme Court's view, interprets conduct to meet that bar if it "might well deter a reasonable person from engaging in protected activity." Importantly, actions that occur inside or outside the workplace can meet this standard.

Retaliation, Interference, and the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) received specific treatment in the new EEOC Guidance, which specifically bars any "interference" from employers that would prevent an employee from exercising his or her rights under the ADA, including coercion, Thereats, or intimidation.

Examples of ADA interference that are detailed in the Guidance include:

  • Pressuring an employee not to advise colleagues, direct reports, coworker, and others their right to reasonable accommodation
  • Refusing to consider an accommodation unless an employee is treated first
  • Warning an employee not to request accommodation
  • Conditioning accommodation on withdrawal of a formal request
  • Threatening negative consequences if an employee does not withdraw an accommodation request
  • Refusing to consider a job applicant who does not submit to an unlawful pre-employment medical exam

What Employees Can Do in the Face of Retaliation

The EEOC has made it clear that the agency will not tolerate retaliation against employees or applicants engaged in reasonable and good-faith protected activities involving discrimination and harassment. Those who feel they have been subjected to retaliation can and should file a charge with the EEOC. Private sector employees, as well as state and local government workers, can do this at their nearest EEOC office, as charges are not taken online. Federal government employees must contact an EEOC counselor in their agency.

While a worker does not need a lawyer to file a charge with the EEOC, the process can be complicated and confusing. Each situation is unique, and some actions against employees - such as dismissals for poor performance or alleged illegal activity on the job - would not be considered retaliation by the EEOC. for this reason, it is often advisable for an employee to consult with legal counsel to discuss their situation and explore options.

At Outten & Golden, we have spent years representing individuals around the country victimized by employers' retaliation. The new EEOC Guidance represents an affirmative statement of the agency's ongoing commitment to protect the rights of all workers and ensuring that workplaces are free of discrimination, harassment, and retaliation.

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