Feb 11, 2016

Retaliation on the Rise: The EEOC Responds

By: Allison Mann

Workforce retaliation occurs when an employer unlawfully takes action against an individual in punishment for exercising rights protected by any of the laws aimed at ensuring equal employment opportunities. Rights protected by these laws include participating in the investigation or prosecution of an equal employment opportunity claim or opposing an unlawful practice under any of the equal employment laws. Among these laws are the Civil Rights Act, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

Employer retaliation claims have become more prevalent across the country. In 2014, the Equal Employment Opportunity Commission (EEOC) reported that retaliation claims reached a record high. In North Dakota, some form of employer retaliation was alleged in over 60% of all charges filed with the Commission. In fact, retaliation is now the most frequently alleged basis for discrimination in private and public employment.

On January 21 of this year the EEOC released its Proposed Enforcement Guidance on Retaliation and Related Issues. The last time the EEOC published any guidance on retaliation issues was in 1998. In the eighteen years since the last EEOC guidance on this issue there have been numerous court decisions regarding retaliation in employment. Now, the EEOC is seeking to clarify its position and give guidance to employers and employees alike.

The updated guidance addresses a variety of issues, including the elements of retaliation claims, the interaction of an ADA “interference” claim, and specific remedies available in retaliation cases. The scope of this article, however, is limited to the EEOC’s “Best Practices” guidance.

The EEOC’s Best Practices Recommendations

This proposed guidance provides significant insight into how the Agency intends to move forward in investigating and prosecuting retaliation claims. In addition, it provides HR professionals a five step plan to avoid retaliation claims. That plan is as follows:

1. Implement Written Employer Policies – Draft a written, plain-language anti-retaliation policy. The policy should address the employer’s expectation of employee conduct. Include examples of what to do, and maybe more importantly, what not to do when allegations of discrimination arise. There should be a reporting mechanism in place for employee’s to air their concerns and a method of informal resolution.
2. Train Employees – An employer should make sure that each employee receives a copy of the written anti-retaliation policy and that management understands that any retaliation will not be tolerated. In addition, the company should provide examples of retaliation and how to avoid those problematic situations. Training should not be limited to the office setting, and should be provided to employees that work in all industries, including manufacturing, service and construction industries.
3. Directly Address Any Issues that Arise – Sometimes, even with the most proactive anti-discrimination policy, discrimination claims arise. In the event that such a claim is brought, HR officials should respond by re-educating the workforce. Provide information to all parties and witnesses regarding the company’s anti-retaliation policy and advise supervisors and management personnel how they can avoid committing actual or perceived retaliatory conduct.
4. Proactively Follow-Up on Discrimination-Related Issues – An employer should then periodically check in with employees, managers and witnesses whenever there is an instance of alleged discrimination. HR professions should identify employee concerns during these conversations. This allows companies to detect perceived retaliation and appropriately address employee concerns before they rise to the level of an EEOC complaint or similar lawsuit.
5. Review Any Consequential HR Decisions – Employers should consider requiring an HR specialist, in-house counsel or individual in a management position to review proposed adverse employment actions such as termination or demotion. The EEOC advises that these professions should be able to “know, understand and easily identify” the reasons for taking such actions and ensure that the necessary documentation exists to support such a position. All such decisions must be free from any unlawful motivation.

The Takeaway:

The bottom line here is the EEOC recognizes that retaliation in the workplace has become a widespread problem. The Commission’s renewed attention to the issue demonstrates a commitment on behalf of the federal government to pursue legal action against employers. An understanding and implementation of the EEOC recommendations, discussed above, can help employers avoid costly retaliation litigation with the federal government by preventing the problems from arising in the first place.

The EEOC’s guidance does not have the same effect as a law, regulation, or statute, and as of right now, it is only a draft. There is a 30 day public comment period (ending February 24, 2016). After that period has expired, final guidance from the EEOC can be expected. The full version of the Proposed Enforcement Guidance can be accessed at the following address: http://www.regulations.gov/#!docketDetail;D=EEOC-2016-0001>

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(Otherwise known as “the fine print”)

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Reprinted with permission from an article submitted for publication in the February, 2016 Southwest Area Human Resource Association newsletter.