Retaliation claims are asserted most often in charges filed with the EEOC and, consequently, pose a growing threat to employers. Here are quick links to new EEOC Guidance, as well as some advice for actions employers should take to minimize the risks in this area.
In the latest development, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. 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.
The EEOC has also issued two short resource documents along with the new Guidance: a question-and-answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language.
This development reinforces that there are several actions that management should take to minimize this risk. Training front-line supervisors on how to avoid retaliation claims is a key to reducing and minimizing risk. Prudent employers should always follow-up on reports of discrimination or retaliation to ensure no subsequent adverse actions are taken against those who reported it or supported it during any investigation. Employers should also be sure to review contemplated adverse employment actions to make sure they are not actually motivated by a desire to retaliate.
Please contact a member of the firm's Labor and Employment practice group to assist or provide additional information on mitigating risk in the workplace.