EEOC Proposes New Guidance on Employment Retaliation

How does the EEOC define employment retaliation?

Federal and state laws prohibit employers from retaliating against employees who complain about violations of the law, harassment or discrimination by taking adverse actions such as harassing, demoting, or firing these individuals. Now, the Equal Employment Opportunity Commission (EEOC) has proposed new enforcement guidance that expands the definition of retaliation. The commission recently released a document, “Enforcement Guidance on Retaliation and Related Issues” which includes new standards defining retaliation under civil rights and anti-discrimination laws.

What is retaliation?

Currently, it is illegal for an employer to fire, harass or demote employees who complain about violations of the law, harassment or discrimination.  Other adverse actions include discipline, negative evaluations, issuing warnings, salary reductions, and changing shifts or job assignments. Some employees may also be passed over for a promotion. Retaliation may also involve hostile attitudes or behavior by employers, including managers, supervisors or co-workers toward an employee who has complained.

The EEOC relies upon three elements to prove a retaliation case:

  • The employee participated in a protected activity — typically a complaint of discrimination or harassment
  • The employer or manager took an adverse action against the employee
  • There is a causal connection between the protected activity and the adverse action

The EEOC’s proposed guidance expands the meaning of each element. First, the protected activity can occur explicitly or implicitly by the employee making a complaint directly or providing information during an investigation. Further, adverse actions can include anything that could be “reasonably likely’ to interfere with protected activity, including activities that are not work-related or take place outside of the workplace or actions against third parties such as family members. Finally, the guide lines broaden the scope of causal connection by creating “a convincing mosaic of circumstantial evidence.”

How can an employer minimize the risk of retaliation violations?

Employers need to be familiar with applicable state and federal discrimination laws, particularly those related to wrongful termination due to retaliation. In order to be proactive and create a workplace environment that minimizes the risk of retaliation violations employers should:

  • Establish and implement an anti-retaliation policy that defines retaliation and provides specific examples of legally actionable retaliation for managers and supervisors
  • Provide regular training to executives, managers, supervisors and employees on the anti-retaliation policy
  • Create a procedure for employees to report concerns and instances of retaliation
  • Provide a disciplinary measures for retaliation, up to and including termination

While the EEOC’s guidance is only a proposal, it comes as retaliation claims are becoming more common. If you are facing a retaliation lawsuit or have questions about how to establish an anti-retaliation policy, you should engage the services of a qualified attorney.