The Equal Employment Opportunity Commission (EEOC) has released its final Enforcement Guidance on Retaliation and Related Issues. While the guidance doesn’t create any new law, it serves as a good reminder of the position the EEOC takes on such claims. Here are a few highlights from the Guidance:
- Retaliation can exist even when no official employment action against the employee is taken. For example, it could be retaliation because of the employee’s EEO activity for an employer to:
- reprimand an employee or give a performance evaluation that is lower than it should be;
- transfer the employee to a less desirable position;
- engage in verbal or physical abuse;
- threaten to make, or actually make reports to authorities;
- increase scrutiny;
- spread false rumors, treat a family member negatively; or
- take action that makes the person’s work more difficult.
- The EEOC makes clear that an employer cannot retaliate against an employee for raising Americans with Disabilities Act (ADA) rights, and cannot interfere with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert these rights.
- The Guidance contains an entire section entitled “Examples of Facts That May Defeat a Claim of Retaliation.” This section includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, as well as others.
- The Guidance includes a list of suggestions that the EEOC believes may reduce the risk of retaliation violations:
- Implementing a written anti-retaliation policy;
- Training all supervisors on the anti-retaliation policy;
- Providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action;
- Proactively following up after protected activity or opposition has taken place; and
- Reviewing your internal employment actions to ensure full compliance with the EEOC laws on retaliation.
We encourage all employers to review the Guidance carefully to make sure that their current policies and practices are compliant. Employers should pay particular attention to the EEOC’s suggestions on practices that may reduce the chances of retaliation, as implementing and enforcing these may help to protect employers from potential retaliation claims.