Category Archives: Retaliation

EEOC Issues Final Retaliation Guidance

EEOC LOGOThe 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.

 

 

 

 

 

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2nd Circuit Speaks On SEC Whistleblower Retaliation

pillarsOn September 10th, the 2nd Circuit Court of Appeals (New York, Connecticut and Vermont) handed down its decision in Berman v. Neo@Ogilvy, holding that an internal report of what an employee deems to be a securities law violation can protect him from retaliation under the Dodd-Frank Act.

The Act defines “whistleblower” as “any individual who provides … information relating to a violation of the securities laws to the Commission, in a manner established by rule or regulation, by the Commission.” (Emphasis added.)  And retaliation against “whistleblowers” is prohibited by the Act. However, the Act also prohibits retaliation against those making disclosures that are protected by the Sarbanes-Oxley Act, which provides protection for internal reports.  The Securities and Exchange Commission (SEC) has taken the position (in its regulations and interpretive rules) that although “whistleblower” is defined in the Act as an individual who provides information to the Commission, this other provision of the anti-retaliation section protects individuals who make an internal report to their employer.

In 2013, the 5th Circuit (Texas, Louisiana and Mississippi) rejected the SEC’s position, and ruled that the plain language of the Act requires a covered “whistleblower” – an individual who provides information relating to a violation of the securities laws to the Commission. Thus, under the 5th Circuit’s holding an employee can’t base a retaliation claim on an internal report.

In this case, the 2nd Circuit disagreed with the 5th Circuit, giving deference to the SEC’s interpretation of the Act. According to the 2nd Circuit, employees do not need to report the alleged violations of securities laws to the SEC to be protected from retaliation under the Act.

Given the circuit split, it is quite possible that the issue will find itself before the Supreme Court. Until then, and regardless of what state(s) you operate in, we recommend that you carefully consider any employment action that follows an internal or external complaint of any kind to determine whether the complaint may be considered “protected activity” and whether taking the employment action opens you to a retaliation claim.