The EEOC’s January 21, 2016 “Draft Proposed Enforcement Guidance on Retaliation and Related Issues” continues the pattern of governmental agencies probing deeply into your whistleblower program. Whether or not the guidance remains exactly as drafted, it is a window into the EEOC’s view of an effective anti-retaliation system. And its message is clear: employers need an integrated response system that involves supervisors and managers throughout the process, removes psychological deterrents to reports of retaliation, responds promptly and expertly to allegations, and avoids retaliation during the investigation and afterward.
The guidance covers a wide range of retaliation-related topics, including a definition of retaliation, examples of protected activity, types of adverse actions, legal remedies and consequences, and the ADA’s interference provision. It closes by identifying the following five EEOC “best practices” for employers to minimize the risk of retaliation:
- Written Employer Policies
- Provide Anti-retaliation Advice and Individualized Support for Employees, Managers, and Supervisors
- Proactive Follow-Up; and
- Review Consequential Employment Actions to Ensure EEO Compliance
In essence, the EEOC is looking for an anti-retaliation process that covers the lifecycle of allegations of retaliation, from report to investigation to resolution. Taken together, these best practices comprise the EEOC’s expected anti-retaliation compliance program, a system that encourages employees to raise concerns, supports them through all stages of the process, effectively investigates and resolves such concerns, and monitors for potential retaliation thereafter.
Regarding policies, the EEOC expects companies to remove impediments that could dissuade reporting, give examples of retaliation, take proactive steps to prevent their managers and supervisors from retaliating once a concern is raised, have in place an effective reporting mechanism, and provide for informal resolution where needed.
The EEOC’s focus on training suggests, among other things, that managers and supervisors must understand the way the anti-retaliation policy and the incident response system works and support anti-retaliation initiatives and investigations, even where they themselves are subjects of complaints.
The EEOC’s third and fourth items, providing advice and individualized support and proactive follow-up, contemplate supportive communications during an internal investigation to complaining parties and subjects alike. The EEOC recommends an open guidance channel to any employees who may have concerns during the pendency of an investigation, and specifically suggests a forum for managers to express their resentment about the complaint while being coached on how to avoid actual or perceived retaliation.
The final recommended practice, reviewing employment actions for EEO compliance, expresses the need for a back-end education and monitoring process for all “employment actions of consequence” to avoid improper, retaliatory considerations from being included in performance reviews and disciplinary action.
In all, the EEOC’s approach imposes an extraordinary level of detail into each aspect of an anti-retaliation compliance program. Unless employers have recently reviewed and implemented an investigation system that accounts for each of these recommended practices, it is likely their system will be found wanting when retaliation concerns are raised with and reviewed by the EEOC. The best response to this enforcement guidance is a prompt risk assessment of the internal investigation function and enhancements that purposefully tie each part of the investigation process into the company’s anti-retaliation initiatives. Whether or not the EEOC’s guidance is promulgated with all of its current content, its “best practices” should give employers a good reason to look at their investigation response to ensure it is well-designed and orchestrated properly.