On August 29, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) issued its Final Enforcement Guidance on Retaliation and Related Issues (the Guidance). The Guidance can be accessed here.

The Guidance replaces the EEOC’s 1998 Compliance Manual section on retaliation. It also addresses the separate "interference" provision under the Americans with Disabilities Act, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. On January 21, 2016, the EEOC published a proposed guidance for public input on www.regulations.gov. The final Guidance reflects the Commission's consideration of feedback received on the proposal.

The Guidance addresses retaliation under each of the statutes enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act. Topics explained in the new Guidance include:

  • The scope of employee activity protected by the law;
  • Legal analysis to be used to determine if evidence supports a claim of retaliation;
  • Remedies available for retaliation;
  • Rules against interference with the exercise of rights under the ADA; and
  • Detailed examples of employer actions that may constitute retaliation.

Since the EEOC issued its 1998 Compliance Manual section on retaliation, the US Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws. According to the EEOC, “the filing of EEO claims that include a retaliation allegation has continued to grow.” Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015.

In its Guidance, the EEOC states generally that retaliation occurs “when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces.” The agency explains that “EEO anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in other EEO activity without employers taking materially adverse actions in response.”

The Commission has also issued two documents to accompany 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.

Retaliation charges have become increasingly prevalent and increasingly difficult to defend. This Guidance sheds some valuable light on how the EEOC will evaluate retaliation claims, and assists employers and their counsel in minimizing potential exposure to such claims.