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After Almost 20 Years, The EEOC Has Issued New Guidelines On Retaliation

September 02, 2016

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On August 29, 2016, the EEOC released its final Enforcement Guidance on Retaliation and Related Issues, to replace the retaliation section in its 1998 Compliance Manual: https://www1.eeoc.gov//eeoc/newsroom/release/8-29-16.cfm?renderforprint=1 The guidance also addresses the separate "interference" provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. 

Topics explained in the new guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation or interference.

In the guidance, the EEOC takes a broad approach to retaliation. 

Participation in EEO Process

Of note, the guidance explains that “participation in an EEO process” extends to “participation in an employer's internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC.” 

Protected Activity

The guidance also extends protection to an applicant or employee for communicating opposition to a “perceived” EEO violation. For statements or actions to be considered protected, opposition from an employee or applicant need only be based on the individual’s reasonable good-faith belief that a matter violates equal employment opportunity law. This means that it can be reasonable to complain about behavior that is not yet legally harassment, or for an employee to believe that conduct violates the EEO laws even if the EEOC has adopted that interpretation even if some courts disagree.

Importantly, the guidance acknowledges that employees are not shielded from the consequences of poor performance or misconduct if they raise an internal EEO allegation or file a discrimination claim with an enforcement agency.

Adverse Action

The EEOC points out that retaliation includes any employer action that is “materially adverse,” which means it can be an employer action that is work-related, or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity. The action can be materially adverse even if it does not stop the employee from asserting her EEO rights.

ADA Interference

The guidance explains that under the ADA's interference provision, it is unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual's exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights. Examples of interference include: coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled; intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired; threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute; issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections; interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

“Promising Practices” For Employers

Finally, the guidance suggests that employers consider the following “promising practices” to minimize the likelihood of retaliation violations:  

  • 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;
  • Train all managers, supervisors, and employees on the employer's written anti-retaliation policy, and send a message from top management that retaliation will not be tolerated;
  • Provide managers and supervisors alleged to have engaged in discrimination with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace;
  • 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; and
  • Require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision.

For more information, please contact:

Dorothy Liu

415-995-5046 Direct Phone
415-995-3506 Fax

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Lisa Pooley

415-995-5051 Direct Phone
415-995-3405 Fax

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Emily Leahy

415-995-5155 Direct Phone
415-995-3557 Fax

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