Allegations of retaliation now account for approximately 45 percent of all charges received by the Equal Employment Opportunity Commission (EEOC), making retaliation the most frequently alleged basis for discrimination. On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation.
In January 2016, the EEOC issued a draft of the Guidance, after which it received input from roughly 60 organizations and individuals before preparing the final Guidance. The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).
Along with the Guidance, the EEOC has issued two accompanying documents: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance. These documents, along with the Guidance, stem from recent case law, including seven U.S. Supreme Court cases issued since the EEOC released its 1998 Compliance Manual.
For example, the Guidance relies on Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271, 280 (2009), which found that retaliation provisions protect both those employees who complain about unlawful employment practices and those employees who disclose those practices to an investigator, to find that opposition to discriminatory practices has an “expansive definition.” The Guidance says that retaliation’s statutory terms “are broad, unqualified, and not expressly limited to investigations conducted by the EEOC.” The Guidance also cites Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 69 (2006), which expanded the scope of retaliation claims to cover any employer action that “might well deter a reasonable employee from complaining about discrimination.” The Guidance thus leaves little doubt that the EEOC takes a broad view when it comes to the types of employer actions that may constitute retaliation.
Like the EEOC’s guidance on other subjects, the new retaliation Guidance includes a number of examples that explain the scope of retaliation under the various statutes mentioned above. For instance, the Guidance points out that it is unlawful to retaliate against employees or applicants for taking part in an internal or external investigation of employment discrimination, filing or being a witness to a charge, complaint, or lawsuit alleging discrimination, or reporting an instance of harassment to a supervisor. The Guidance also covers the legal analysis used to determine if evidence supports a claim of retaliation, the remedies available for retaliation and the separate “interference” provision of the ADA, which prohibits unlawful interference with the exercise of an employee’s rights under the ADA.
Claims of retaliation show no sign of letting up, so employers are encouraged to review the new Guidance to understand the EEOC’s position on retaliation.