Retaliation Encyclopedia

By Andy Volin

The EEOC just released proposed enforcement guidance on retaliation, and at 73 pages, it has everything you ever wanted to know on the topic.  This is the first time since 1998 that the EEOC has updated its guidance on this topic, and the EEOC is soliciting public comment until February 24, 2016.

Retaliation claims can be brought under all the laws enforced by the EEOC — Title VII, ADEA, ADA, GINA (Genetic Information Nondiscrimination Act), EPA (Equal Pay Act), and the Rehabilitation Act. The proposed guidance has several parts.  It starts by explaining in great detail the elements of a retaliation claim:  (1) protected activity as either “participation” (filing an EEOC charge or internal EEO complaint) or “opposition” (communicating a belief of a perceived EEO violation); followed by (2) “adverse action,” that occurred (3) because of the protected activity.  It also describes various types of remedies available for retaliation.

The discussion is packed with dozens of examples. Some are straight forward, such as actions against employees who complain about perceived pay disparities.  Others are more unusual, such as actions against non-employees who fall within a “zone of interests” because of their relationship to employees who engage in protected activity.  The proposed guidance explains when actions by employees in non-decision making roles can still create liability for the employer, and why the ADA’s non-interference clause creates even broader protection than the retaliation provision.

The guidance concludes with a discussion of best practices for employers. Does your company have a written policy in plain language with useful examples, a robust training program for different levels of employees, individualized support for employees, pro-active follow up, and review of proposed employment actions to ensure that they are non-retaliatory?