EEOC

Insights on Workplace Developments from LP’s Conversation with EEOC Vice Chair Jocelyn Samuels

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LP hosted a fireside chat with EEOC Vice Chair Jocelyn Samuels. The Vice Chair also shared invaluable insight on the Pregnant Workers Fairness Act (“PWFA”), emphasizing that pregnancy accommodations are a significant focus of the EEOC. The discussion underscored that the process for considering pregnancy accommodations is materially different from the process for disability accommodations and requires a different analysis. Audience members also asked specific questions about the Vice Chair’s thoughts on enforcement and guidance given the changing landscape of employment laws. 

Below are a few highlights from the discussion with Vice Chair Samuels.

Accommodations.

We discussed the three categories of employee accommodations: (1) disability, (2) religion, and (3) pregnancy. The discussion started off with understanding how to respond to disability accommodation requests, especially in the context of a remote work accommodation request and whether that was reasonable. The discussion delved further into the issues of essential functions and marginal functions for which employees are responsible. The Vice Chair pointed out that the accommodations process for disabilities and sincerely held religious beliefs should include a review of whether the employee’s essential functions, as opposed to marginal functions, can be completed. Marginal functions that are not essential functions cannot be relied upon to deny an accommodation.

We were also able to gain invaluable insight on the PWFA and learn that pregnancy accommodations are a significant focus of the EEOC, especially given that the regulations the EEOC published, which were finalized June 18, 2024, were mandated by Congress. The discussion underscored the importance of recognizing that the pregnancy accommodations and disability accommodations processes are not subject to the same analysis. A requested accommodation that may be unreasonable under a disability accommodation analysis may be reasonable under a pregnancy accommodation analysis. Further, the PWFA has specific limitations on when employers may request documentation. LP will be covering the PWFA further in its Annual Employment Law Webinar in September.

The Role of Diversity, Equity & Inclusion (DEI).

During the conversation with Vice Chair Samuels, we delved into the issue of DEI. Audience members raised questions about whether the heightened scrutiny of DEI programs should cause concern. Vice Chair Samuels reiterated that, despite pushback on DEI in the workplace, employers’ commitments to ensuring a diverse working population in a facially neutral manner are permissible. Employers are permitted to take steps to make their workforces representative of society, their customer base, or another specific group, but they need to exercise caution when those efforts hinge on protected characteristics like race. The employer’s goal should be to create workplaces where people from different backgrounds, socioeconomic statuses, and walks of life are represented. The best way to ensure this is through the interview process by asking questions about employee experiences.

As always, routine documentation and equal application of policies that management-level employees can reference when navigating these issues are key components of ensuring compliance.

We appreciate Vice Chair Samuels’ participation in the event. We will continue to provide updates on employment-related developments. To be kept up to date, subscribe to LP3. If you have questions, do not hesitate to reach out to LP’s Employment & Executive Compensation Group.

Workplace Compliance Concerns: A Discussion on the Impacts of AI, Remote Jobs, and DEI on Employment Practices

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LP is thrilled to host a fireside chat with EEOC Vice Chair Jocelyn Samuels on Tuesday, July 23 from 5:00-7:00 p.m. This is a unique opportunity to speak directly with the EEOC’s Vice Chair about issues that matter to your business. Among other topics, Samuels will discuss:

  • Managing remote workforces
  • Understanding how to best address generative AI tools in the workplace
  • Recognizing how DEI initiatives fit into the workplace
  • Considering how to address employee accommodation needs

Click here to register. This program has been approved for CLE credit and HRCI credit is pending approval.

EEOC Issues Final Updated Guidance on Workplace Harassment

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Author Saman Haque

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published its updated enforcement guidance on workplace harassment. The long-awaited updated guidance comes six years after its previous attempts to issue guidance stalled and nearly twenty years after the agency last published guidance on workplace harassment. In that time, there have been notable legal developments, including the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that employees are protected from discrimination based on sexuality or gender identity.

Acting under its authorization to enforce federal employment discrimination laws that protect employees from harassment based on race, color, religion, sex (including sexual orientation, transgender status, and pregnancy), national origin, disability, age (40 and older), or genetic information, the EEOC’s guidance “updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.”

In a press release, the EEOC stated that the final guidance “reflects the EEOC’s commitment to protecting persons who are particularly vulnerable and persons from underserved communities from employment discrimination.”

Key Updates to the EEOC’s Guidance on Workplace Harassment

Among the final published guidance are the following notable updates:

  • Specific protections for LGBTQ+ employees’ rights in the workplace.
  • Confirmation that sex-based harassment includes harassment based on pregnancy, childbirth, or reproductive decisions (including decisions about abortion).
  • Over 70 examples of unlawful harassment to reflect a broad scope of workplace situations.
  • Recognition that harassment in the workplace can be by coworkers and supervisors, as well as by customers, contractors, and other third parties.
  • Acknowledgement of the impact of evolving and expanding digital technology, including social media, on the work environment.

Takeaways for Employers

In light of the updated guidance, employers should:

  • Consider updating policies. The new guidance includes specific references to harassment based on sexual orientation and gender identity, such as misgendering or “outing” an employee. Accordingly, employers may want to review their current policies to explicitly include gender identity as a protected characteristic in their equal employment opportunity and anti-harassment policies.
  • Provide robust training. Employers may also want to update their training programs to incorporate some of the updated examples of workplace harassment provided in the guidance. Examples specifically highlighting protected categories that employees often overlook is helpful in reenforcing that that an employer will not tolerate harassment of any kind.
  • Promote an inclusive culture. Employers should consider ways to promote inclusivity and prevent harassment in their workplace culture. For instance, employers can allow employees to add their preferred pronouns to email signatures and remote communication tools and consider including training for supervisors and managers on social and cultural competencies.
  • Consider jurisdiction-specific requirements. For instance, the recently enacted Chicago Human Rights Ordinance requires all Chicago employers to provide the following anti-harassment trainings on an annual basis:
    • One hour of sexual harassment prevention training for all employees
    • One additional hour of sexual harassment prevention training for supervisors and managers
    • One hour of bystander training for all employees

LP offers multiple training programs that meet the Chicago and Illinois requirements and incorporate the updated EEOC guidance to ensure employers are taking appropriate preventive measures to ensure a productive and safe workplace. If you would like to schedule a training, please reach out. A member of our Employment & Executive Compensation team would be happy to speak with you.

EEOC Announces Its OutREACH Initiatives with a Focus on Employers’ Recruitment and Hiring Practices

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Author Saman Haque

The Equal Employment Opportunity Commission (EEOC) started the year off focused on getting to work. The EEOC released its Outreach Initiative on January 29, 2024, following its Strategic Enforcement Plan for Fiscal Years 2024 – 2028, which was released in September 2023. The Strategic Enforcement Plan focuses on the EEOC’s commitment to combating employment discrimination, promoting inclusive workplaces, and responding to the national call for racial and economic justice.

The EEOC’s Strategic Enforcement Plan is focused on employers’ recruitment and hiring practices. The EEOC has prioritized addressing “policies and practices that limit access to on-the-job training, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, internships, or other job training or advancement opportunities based on protected status.”

The EEOC indicated that it will focus on recruitment and hiring practices that unlawfully discriminate through the following systems and practices:

  • Technology. This includes artificial intelligence and machine learning in job advertisements, recruiting, or making/assisting in hiring decisions where technology intentionally excludes or adversely impacts protected groups. The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document on assessing adverse impacts when using AI, which built on previous guidance from the EEOC on AI and the Americans with Disabilities Act. You can read more here.
  • Job advertisements. The EEOC will focus on discrimination via job advertisements that exclude or discourage certain protected groups from applying for the open position.
  • Job isolation. This includes channeling, steering, or segregating individuals into specific jobs based on protected characteristics.
  • Training. The EEOC will focus on enforcing discrimination via policies and practices that limit access to on-the-job training, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, internships, or other job training or advancement opportunities based on protected characteristics.
  • Temporary work. The EEOC will focus on policies and practices that “limit employees exclusively to temporary work on a basis prohibited by federal employment laws when permanent positions are available for which they are qualified.”
  • Application process. This includes relying on restrictive application processes or systems, including online systems that are difficult to access for individuals with disabilities or other protected groups.
  • Screening. The EEOC will focus on screening tools or requirements that disproportionately impact workers on a protected basis, including tools facilitated by artificial intelligence or other automated systems, pre-employment tests, and background checks.

Employers should be mindful of the practices that their Human Resources Departments use to process applications, how they advertise job openings, methods of providing internal growth opportunities to employees, and the parameters used to categorize employees as temporary employees instead of full- or part-time.

Accessibility continues to be a focus of the EEOC, and employers should be conscious of how user-friendly their applications are to those that are protected under the ADA.

The EEOC is also focused on the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, high tech, STEM, and finance. In launching its REACH initiative, the EEOC committed to outreach to vulnerable workers and underserved communications by:

  • Holding in-person and virtual listening sessions with a broad range of stakeholders in different areas around the country to examine how the EEOC can bolster its efforts to reach vulnerable and underserved communities by identifying existing barriers to reporting discrimination and soliciting recommendations on how to serve these populations better.
  • Reviewing and evaluating existing research and recommendations on effective outreach strategies, tools, and methods to inform the initiative’s work.
  • Identifying best practices for reaching vulnerable and underserved communities and considering how to develop an increased presence in rural areas and areas far from physical EEOC office locations.
  • Developing recommendations to present to the EEOC Chair for enhancing outreach efforts.

We will continue to monitor and stay abreast of developments related to EEOC enforcement initiatives as necessary. If you have any questions about the EEOC’s stated priorities, including using AI or algorithmic decision-making tools in your workplace, please don’t hesitate to reach out. 

Three Takeaways from the EEOC’s Guidance on the Use of AI in Making Employment Decisions

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Author Becky Canary-King

Artificial intelligence (AI), algorithmic programs, and software tools continue to have far-reaching (and sometimes unlikely) effects, including in our professional lives. There are now a wide variety of AI and algorithmic tools available to assist employers in recruitment and employee management.  

However, these tools come with some risks, including unintentional discriminatory effects. Title VII and the ADA prohibit employers from using selection procedures that disproportionately exclude employees or applicants based on race, color, national origin, religion, disability or sex, unless the procedures are job-related and consistent with business necessity. Even if job-related, employers must consider if there are available alternatives.  

The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document on assessing adverse impacts when using AI. This guidance builds on previous guidance from the EEOC on AI and the Americans with Disabilities Act.  

Below are three key takeaways for employers who use, or are interested in using, AI or other algorithmic tools to assist in hiring, performance management, or other employment decisions: 

  1. Employers cannot assume that AI tools are non-discriminatory. 

While AI tools may appear neutral, they can result in unintentional discriminatory effects. For example, an AI tool may automatically screen out applicants based on large gaps in employment. This could have a disparate impact on the basis of sex, as gaps in employment may be result of pregnancy or leaving the workforce to raise children. This tool may also screen out individuals with disabilities who have gaps in employment for disability-related treatments.  

The EEOC encourages employers to proactively analyze their employment practices, including software and AI tools, on an ongoing basis to ensure there are no such adverse impacts. 

  1. Employers should consider available alternatives if AI tools cause an adverse impact. 

Employers can assess whether a selection procedure has an adverse impact on a particular protected group by checking whether use of the procedure causes a selection rate for individuals in the group that is “substantially” less than the selection rate for individuals in another group. The general rule of thumb is that a selection rate is substantially different than another if their ratio is less than four-fifths (or 80%), however, courts often look to statistical significance when assessing adverse impact.  

If the selection procedure has an adverse impact, the employer should consider whether the use of the tool is job-related and consistent with business necessity and whether there are alternatives that may have less of a disparate impact. 

  1. Employers can be responsible for AI tools designed or administered by a vendor. 

The guidance makes clear that an employer can be responsible for adverse impacts in their selection procedures, even if the tool was developed by an outside vendor or carried out by an agent administering the tool on its behalf.  

The EEOC suggests that employers ask the vendor, at a minimum, if it has assessed whether the tool causes a substantially lower selection rate for individuals within a protected group. Additionally, language can be built into vendor contracts requiring the use of non-discriminatory selection tools.  

We continue to monitor and stay abreast of developments related to the rapidly changing world of AI and will provide updates as necessary. If you have any questions about the use of AI or algorithmic decision-making tools in your workplace, please don’t hesitate to reach out. 

EEOC Issues New Guidance on Religious Objections to COVID-19 Vaccine Mandates

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Author: Laura Friedel

On Monday, October 25, 2021, the EEOC released much-awaited guidance on how employers should handle employee requests to be exempted from vaccination requirements because of religious beliefs. The new guidance is in the new Section L of the EEOC’s Technical Assistance.  Here are some highlights:

  • Employees must tell their employer if they are requesting an exception to COVID-19 vaccination requirements because of a conflict between that requirement and their sincerely held religious beliefs, practices or observances.  However, they don’t have to use any “magic words” in making their request.
  • Employers should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if the employer has an objective basis for questioning either the nature or the sincerity of a stated belief, they can make a limited factual inquiry and seek supporting information. 
  • The definition of “religion” under Title VII includes both traditional religious beliefs and non-traditional religious beliefs, but it does not include political, social or economic views or personal preferences.  Employees may be asked to explain the nature of their belief that requires the accommodation.
  • Even if an employee’s sincerely held religious belief prohibits them from being vaccinated, the employer can still refuse to provide an exception to a vaccine mandate if it would cause the employer an “undue hardship.”  While the EEOC notes that in many cases it is possible to accommodate employees’ requests for exceptions to a vaccine mandate (for instance, by allowing work-from-home or requiring the employee to take extra measures (such as frequent testing), it also acknowledges that an employer can’t be required to bear more than a “de minimis” cost in accommodating an employee’s religious belief – for instance, if it would impair workplace safety, diminish efficiency or cause coworkers to carry the employee’s share of potentially hazardous or burdensome work.  The key here is that it is a very fact-specific inquiry, so employers should analyze each request individually, rather than setting a broad rule.
  • Just because one employee is granted an exception from a COVID-19 vaccine mandate doesn’t mean that it needs to be granted to others.  Again, the key is the particular facts and circumstances, so employers should look at the employees’ duties, how many people they come into contact with, etc.
  • Even where an employer is required to provide an accommodation, it is not required to provide the particular accommodation requested by the employee.  So if there’s another accommodation available that would allow the employee to perform their duties and would not cause an undue hardship, it can be offered, even if it’s not the accommodation the employee requested.
  • Employers may revisit accommodations based on changed circumstances, but as a best practice, any changes should be discussed with the employee in advance so that alternate accommodations can be considered.

What is clear from the EEOC’s guidance is that requests for exceptions to vaccine requirements for religious reasons need to be considered on a case-by-case basis. It is also important to consider state and local requirements that may limit vaccine mandates.  As such, we recommend consulting with an employment attorney in responding to such requests.

Can Employers administer COVID-19 tests? What about reasonable accommodations? Latest EEOC Guidance on Interpreting the ADA during the Pandemic

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The EEOC continues to update its guidance [Link: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm] on the enforcement of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, during the coronavirus pandemic. Below are the highlights from the latest updates:

Can employers administer COVID-19 tests?

Yes. Employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employers should ensure that that the tests are accurate and reliable, consistent with guidance from the U.S. Food and Drug Administration, CDC and other public health authorities.

Remember that employers who choose to test employees must keep the results confidential and store this information separately from the employee’s personnel file.

Do employers have to provide reasonable accommodations to employees who have a higher risk from COVID-19?

Potentially, yes, if the employee’s higher risk is due to a preexisting condition and it does not cause an undue hardship. The EEOC proposes a number of potential low-cost accommodations for reducing exposure in the workplace, including designating one-way aisles, and using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance. Additionally, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying work schedules may be reasonable accommodations.

Do employers have to provide reasonable accommodations to employees who have a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic?

Potentially, yes, if it does not cause an undue hardship. Although many employees feel stress due to the pandemic, employees with certain preexisting mental health conditions, such as anxiety disorder or post-traumatic stress disorder, may have more difficulty handling the disruption and may require an accommodation.

Is the pandemic relevant to what accommodations can be denied as causing an “undue hardship”?

Yes. An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now, as the pandemic changes what accommodations cause employers “significant difficulty or expense.” For example, it may now be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to acquire certain items as delivery may be impacted. Additionally, the EEOC notes that the sudden loss of some or all of an employer’s income stream and amount of discretionary funds available because of this pandemic are relevant considerations.

Does the pandemic change the interactive process or length of accommodations?

Potentially, yes. During the pandemic, the employers may still ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation

However, employers may choose to forgo or shorten the interactive process and grant accommodation requests on an interim, short-term or trial basis to keep up with the changing circumstances based on public health directives. Employers may choose to put an end date on the accommodation (for example, until the end date of a stay-at-home order) but must consider extensions, particularly if current government restrictions are extended or new ones adopted.

May employers require employees to wear face masks or gloves?

Yes. Employers may require employees to wear protective gear and observe infection control practices. However, employees may request reasonable accommodations under the ADA or religious accommodations from wearing this equipment.

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Non-Coronavirus Related Activity in the Supreme Court

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While attentions have been focused elsewhere, the Supreme Court continues to operate remotely and release decisions. Here are recent highlights from the highest court:

Clarified Standards for federal ADEA and Section 1981 Claims

The Supreme Court has ruled on two cases recently regarding the standards for proving employment discrimination claims. Each case determined which of two standards was necessary to prove a claim:

  • The “but for” standard, which requires an employee to show that the employer would have reached a different decision if the protected characteristic wasn’t considered; or
  • The “motivating factor” standard, which requires employees to show that the protected characteristic was one of several factors that led to an adverse employment action.

In Babb v. Wilkie, the Court found that federal employees may prove age discrimination under the Age Discrimination in Employment Act (ADEA) using the more lenient “motivating factor” standard. For private sector employees, the Supreme Court has already ruled that employees must use the “but for” standard, but the court noted that the federal-sector provision in the ADEA is worded differently from its private-sector counterpart. However, federal employees will still need to show discrimination based on the stricter “but for” standard to receive remedies under the ADEA.

In Comcast Corp. v. National Association of African American-Owned Media, the Court held that the “but for” standard applies to claims under 42 U.S.C. 1981 (Section 1981). This means that employees bringing claims for employment discrimination on the basis of race or ethnicity under Section 1981 may only prove their case using the “but for” standard. This ruling did not impact the standards under Title VII, which allows employees to prove race discrimination using the “motivating factor” standard.

Takeaway: The difference between these standards can be significant in practice. The motivating factor test requires employees to show that the protected characteristic was one of several reasons that led to the action. The but-for test requires the employee to show that the decision would not have happened, but for the protected characteristic.

Justice Clarence Thomas, in his dissent in Babb, cautioned that applying this more lenient standard could result in the federal government facing more ADEA lawsuits. Meanwhile, civil rights groups have raised concerns that the Comcast decision disadvantages victims of race discrimination, who are “in the least advantageous position to know” whether race was the but for cause of a decision, rather than one of several factors.

EEOC Investigatory Powers

The Supreme Court declined to review a decision from the Ninth Circuit ruling that the Equal Employment Opportunity Commission (EEOC) may continue to investigate a charge of discrimination after it has issued a right-to-sue letter.

In VF Jeanswear v. EEOC, Lori Bell, a former salesperson for VF Jeanswear filed a gender discrimination charge with the EEOC—a required administrative step before filing a federal lawsuit. The EEOC issued Bell a notice of right to sue, and she subsequently filed a lawsuit against VF. Nevertheless, more than a year after issuing the notice of right to sue, the EEOC sent VF a subpoena requesting information about its employees. When VF refused to comply with the subpoena, the EEOC went to court to enforce it. The Ninth Circuit found that the subpoena was enforceable, because it was relevant to the allegations in Bell’s charge, even though the information requested was about practices that did not affect Bell.

Although the Ninth Circuit’s decision conflicted with a previous Fifth Circuit holding that issuing a right to sue notice terminates the EEOC’s ability to investigate, the Supreme Court declined to weigh in on the Ninth Circuit’s decision.

Takeaway: Employers should be aware that—although rare—the EEOC may continue to investigate a charge, even after a notice of right to sue has been issued. Outside of the Fifth Circuit, the employer may be required to comply with such a subpoena. At some point in the future, the Supreme Court hopefully will resolve this circuit split.

EEOC Speaks On Mental Health

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EEOC LOGOThe Equal Employment Opportunity Commission (EEOC) recently published an informal publication outlining the rights of employees who suffer from depression, post-traumatic stress disorder (PTSD), and other mental health conditions under the Americans with Disabilities Act (ADA). Although nothing new per se, the publication serves as a great reminder as to the rights of employees with mental health conditions. The guidance addresses the following topics:

Discrimination. An employer may not discriminate against an employee — which includes firing, rejecting for a job or promotion, and forcing to take leave — simply because he or she has a covered mental health condition or has asked for a reasonable accommodation.

Privacy/Confidentiality. An employer may only ask medical questions (including questions about mental health) in the following situations:

  • When an employee asks for a reasonable accommodation.
  • After it has made a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions.
  • When it is engaging in affirmative action for people with disabilities, in which case an employee may choose whether to respond.
  • On the job, when there is objective evidence that an employee may be unable to do his or her job or that the employee may pose a safety risk because of the condition.
  • To establish eligibility for benefits under other laws, such as the Family and Medical Leave Act (FMLA).

If an employee informs an employer about a condition, the employer cannot discriminate against the employee, and it must keep the information confidential.

“Substantially limiting” condition. A condition does not have to be permanent or severe to qualify. What matters is that the condition — when the symptoms are present —  makes activities more difficult, uncomfortable, or time-consuming.

Reasonable Accommodation. The guidance encourages employees to ask for a reasonable accommodation before any problems occur or become worse. The EEOC gives the following examples of reasonable accommodations:

  • Altered break and work schedules (e.g., scheduling work around therapy appointments);
  • Quiet office space or devices that create a quiet work environment;
  • Changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them);
  • Specific shift assignments; and
  • Permission to work from home.

The guidance notes that where an employee cannot perform all the essential functions of the job and no paid leave is available, an unpaid leave may be a reasonable accommodation if the leave will help the employee get to a point where he or she can perform those functions. Remember that an employer must provide a reasonable accommodation unless it involves substantial difficulty or expense.

Harassment. The guidance reiterates that harassment based on disability is prohibited under the ADA, and that employees should follow employers’ reporting procedures to report any harassment.

We suggest that you review the guidance and make sure that your current policies and practices comply.

 

 

EEOC Issues Final Retaliation Guidance

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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.