EEOC Drafts New Enforcement Guidance on Investigating Claims of Retaliation

On January 21, 2016, the federal Equal Employment Opportunity Commission (EEOC) provided the public with the opportunity to comment on its proposed guidance to its agents on all things retaliation. The proposed guidance manual reviews the basis for investigating claims of retaliation – i.e. claims that the employee had a term or condition of employment materially affected in some manner by the company after engaging in “protected activity” – and outlines the legal basis for finding unlawful retaliation and how agents are to handle such claims. More important though, the guidance is a primer for employees and their attorneys to know what and how to argue claims of unlawful retaliation to the government. As such, it is likewise a guide for employers to know what not to do, so as to avoid claims of retaliation.

The 78 pages of enforcement guidance is a great read (kind of) and there is a plethora of useful information for employers to glean from the text. A couple points of note:

* The EEOC asserts that employers who discipline employees for discussing their pay, when the employees express concern that their pay is an expression of discrimination, is unlawful retaliation.

Due to actions by the National Labor Relations Board (NLRB) and some state governments employers should not have policies restricting employees from discussing their compensation. This is the first time, however, the EEOC has publicly discussed including it as protected activity which they could prosecute.

* For there to be retaliation the employee must have suffered an adverse action at the hands of the employer. What is an adverse employment action, however, is up for debate. The following are some of the situations that the EEOC believes constitute an adverse action:

Disparaging the employee to others or in the media;

• Making false reports to government authorities;

• Threatening reassignment;

• Scrutinizing the employee’s work or attendance more closely than that of other employees, without justification;

• Giving an inaccurately lowered performance appraisal or job reference, even if not unfavorable;

• Removing supervisory responsibilities;

• Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not sufficiently “severe or pervasive,” to create a hostile work environment;

• Requiring reverification of work status, making threats of deportation, or initiating other action with immigration authorities; or

• Taking “any other action that might well deter reasonable individuals from engaging in protected activity.”

Should you want to read and/or comment on the proposed guidance you may do so here. 

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