EEOC Seeks Input on Workplace Retaliation Guidance

By Andrew G. Simpson | February 1, 2016

The U.S. Equal Employment Opportunity Commission (EEOC) is seeking public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws. The enforcement guidance documents set forth the EEOC’s interpretation of the law and seek to promote voluntary compliance, according to the agency.

Federal law makes it illegal to fire, demote, harass or otherwise “retaliate” against applicants or employees because they complained to their employer about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other “protected activity” under employment discrimination laws including civil rights, gender bias, age discrimination, disability and other federal anti-discrimination laws.

The guidance covers topics including a definition of retaliation, best practices, training and remedies. The draft guidance is available for review and comment online.

The 30-day input period ends on February 24, 2016. The public is invited to submit its input using www.regulations.gov in letter, email, or memoranda format. The input provided will be posted publicly on www.regulations.gov and may show email addresses.

The EEOC said it will consider revisions to the draft guidance after receiving comments.

The agency’s last guidance update on the subject of retaliation was issued in 1998. Since that time the Supreme Court and lower courts have issued several rulings regarding retaliation under employment discrimination laws.

In 2006, the Supreme Court in a 9-0 vote favored employees in Burlington Northern Santa Fe Railway v. White when it expanded the legal standard for retaliation claims, finding that employers are liable for unlawful retaliation if their actions “interfere with an employee’s efforts” to ensure that he or she is not discriminated against in the workplace.

In 2009, in Crawford v. Metropolitan Government of Nashville, the Supreme Court case unanimously ruled that Title VII of the 1964 Civil Rights Act protects  employees who oppose unlawful sexual harassment, but do not themselves report the harassment.

In 2011, the high court in Kasten v. Saint-Gobain Performance Plastic Corp., ruled that for purposes of the anti-retaliation provision of the Fair Labor Standards Act, a complaint can be either oral or written.

In 2013, the U.S. Supreme Court in Vance v. Ball State University imposed limits on lawsuits claiming on-the-job harassment, throwing out a case filed by a black catering worker who said a colleague slapped her and used racial epithets. The justices, voting 5-4, said the alleged harasser didn’t qualify as the plaintiff’s supervisor.

That same year in another 5-4 ruling, University of Texas Southwestern Medical Center v. Nassar, the court made it harder for workers to win claims that their employer retaliated against them for complaining about discrimination.  The court said that in such cases, the worker must show that retaliation was the reason the employer took action, not merely one of several motives.

According to EEOC data on the top 10 employment discrimination claims, close to 38,000 or 43 percent of all private sector workplace bias charges it received in the last year were over allegations of retaliation. That percentage has nearly doubled since 1998.

“Retaliation is a persistent and widespread problem in the nation’s workplaces,” said EEOC Chair Jenny R. Yang. “Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws.”

Summer Meeting

Last summer, the EEOC began gathering public input on retaliation issues at a June 17, 2015 meeting on Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention.

Speakers at the meeting raised the emerging issue of punitive pay secrecy policies. Lisa J. Banks, of Katz, Marshall & Banks, said “when employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”

Speakers also cited retaliation against migrant and immigrant worker populations. Daniel Werner, senior supervising attorney for the Southern Poverty Law Center, said fear of retaliation prevents immigrants from speaking out against discrimination. “If retaliation is allowed to occur with impunity, so will the underlying discrimination,” Werner said.

Speakers emphasized the need foe workplace training.

“Effective strategies, such as customized training and timely intervention, are critical to prevent and correct workplace retaliation,” said EEOC Chair Jenny R. Yang at that meeting. “Such efforts benefit workers and employers and make good business sense.”

Karen Buesing, partner, Akerman, LLP, said that “supervisors should be trained to recognize and respond to complaints of discrimination.”

Dexter R. Brooks, associate director of Federal Sector Programs for EEOC, recommended distributing a non-retaliation policy to all employees and that employers should have effective complaint procedures in place.

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