The U.S. Equal Employment Opportunity Commission (EEOC) issued proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws yesterday. The EEOC’s enforcement guidance documents are not regulations, but are intended to inform the public about the EEOC’s interpretation of the law and promote voluntary compliance.
The EEOC’s last updated its guidance on retaliation in 1998. Since then, the Supreme Court and lower courts have issued numerous significant rulings regarding retaliation under employment discrimination laws. The percentage of retaliation charges has doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all charges against non-government employers filed in fiscal year 2014 included retaliation claims.
Parts of the proposed guidance contradict pro-employer court rulings. The guidance concludes with a list of “best practices” for employers to utilize to try to minimize the likelihood of retaliation violations.
1. Written Anti-Retaliation Policy
Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do. According to the EEOC, the policy should include:
- Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment, but are actionable as retaliation because they would deter a reasonable person from engaging in protected activity.
- Proactive steps for avoiding actual or perceived retaliation, including interactions by managers and supervisors with employees who have lodged discrimination allegations against them.
- A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution.
- A clear explanation that retaliation can be subject to discipline, up to and including termination.
The EEOC says employers should consider these ideas for training:
- Train all managers, supervisors, and employees on the employer’s written anti-retaliation policy.
- Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training.
- Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace, ensuring that employees are aware of what conduct is “protected activity” and providing examples on how to avoid problematic situations that have actually manifested or might be likely to do so.
- Offer explicit instruction on alternative pro-active, EEO-compliant ways these situations could have been handled. In particular, managers and supervisors may benefit from scenarios and advice for ensuring that discipline and performance evaluations of employees are motivated by legitimate, non-retaliatory reasons.
- Emphasize that those accused of EEO violations, and in particular managers and supervisors, cannot act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.
- Do not limit training to those who work in offices. Provide EEO compliance and anti-retaliation training for those working in a range of workplace settings, including for example employees and supervisors in lower-wage manufacturing and service industries, manual laborers, and farm workers.
- Consider overall efforts to encourage workplace civility, which some social scientists have suggested may help curb retaliatory behavior.
3. Provide Anti-retaliation Advice and Support for Employees, Managers, and Supervisors
An automatic part of an employer’s response and investigation following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. As part of this debriefing, managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
- Remind supervisors and managers that it is best not to discuss an employee’s pending EEO matters with other employees and managers, but that they are welcome to access designated employer resources for support.
- Provide tips for avoiding actual or perceived retaliation, as well as access to a resource individual for advice and counsel on managing the situation. This may occur as part of the standard debriefing of a manager, supervisor, or witness immediately following an allegation having been made, ensuring that those alleged to have discriminated received prompt advice from a human resources, EEO, or other designated manger or specialist both to air any concerns or resentments about the situation and to assist with strategies for avoiding actual or perceived retaliation going forward.
4. Proactive Follow-Up
Employers may wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation, and to provide guidance. This provides an opportunity to identify issues before they fester, and to re-assure employees and witnesses of the employer’s commitment to protect against retaliation. It also provides an opportunity to give ongoing support and advice to those managers and supervisors who may be named in discrimination matters that are pending over a long period of time prior to reaching a final resolution.
5. Review Consequential Employment Actions to Ensure EEO Compliance
Consider ensuring that a human resources specialist, a designated management official, legal counsel, and/or other resource person review proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons. These reviewers should:
- Require decision-makers to know, understand, and easily identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision.
- Scrutinize performance assessments to ensure they have a sound factual basis and are free from unlawful motivations.
The complete draft guidance is available for review at http://www.regulations.gov/#!docketDetail;D=EEOC-2016-0001