March 1, 2016

Author:  Bobbi K. Dominick

On January 21, 2016 the Equal Employment Opportunity Commission (EEOC) issued a proposed enforcement guidance on retaliation under the myriad federal anti-discrimination statutes that the EEOC enforces.  The guidelines are proposed, and public comments on the proposals were open until February 21, 2016.  Now the EEOC will consider the comments and then issue the final guidance. 

So why should employers be concerned before the final guidance has been issued?  Because the EEOC (a) provides an expected roadmap for how it will view complaints of retaliation, (b) makes it clear that retaliation is an enforcement priority for the agency, and (c) it is very unlikely that comments and revisions will change much of the meat of the document. 

The EEOC begins by pointing out that this guidance is an update to an existing 1998 enforcement guidance, and that the new guidance seeks to catalogue the legal developments and court decisions that have been issued since that time.  The EEOC points out that beginning in FY2009, retaliation claims eclipsed race discrimination as the most frequently alleged basis of discrimination.  In FY2014, retaliation was included as a part of 42.8% of all discrimination charges, and 48.4% of all Title VII charges.  Clearly, the EEOC has a factual basis for its belief that employers need to do more to prevent retaliation. 

The proposed guidance details the EEOC’s view on what constitutes opposition or participation, and makes it clear that the broadest possible interpretation will be used to protect “the willingness of individuals to challenge discrimination without fear or punishment.”

The guidance makes it clear that many activities by employees, aside from actually bringing an EEO charge, will constitute protected activity and subject the employer to potential retaliation liability.  Protected activities include not only filing a complaint or providing information in an investigation, but also refusing to follow an order believed to be discriminatory, advising an employer on EEO compliance, resisting advances, passive resistance by allowing others to oppose unlawful behavior, and even requesting reasonable accommodation for a disability or for religious practices.  Also included are discussions concerning compensation when they relate to disparities in pay allegedly based on gender.  The guidance also details the types of activities that may be an adverse action, ranging from firing and demotion, and broadening out to workplace surveillance, workplace sabotage, and threats to report an employee’s immigration status.


The EEOC also offers thoughts on best practices for employers to focus upon, update, or implement:

  • Make sure policies prohibit retaliation and are written in plain language.  Make sure the policies provide practical guidance on the employer’s expectations, appropriate and inappropriate behavior, and on how to report retaliation.  Policies should include a statement that retaliation can subject the offender to discipline, including termination. The policy cannot include a statement warning against false complaints that might chill reporting or give rise to a fear of retaliation for reporting.
  • Provide training to all employees on the written policy.  Send the message from top management that retaliation will not be tolerated.  Train on how to bring forward concerns about retaliation. Train managers on how to respond to complaints, and how to divert feelings of revenge or retribution.  Encourage workplace civility.
  • When conducting an investigation into a complaint, include instruction for all involved on the employer’s anti-retaliation policy.  Provide guidance and/or counseling resources to supervisors who feel aggrieved.  Provide tips for avoiding the appearance of retaliation.
  • Provide proactive follow-up to check in with employees and managers during the pendency of an EEO matter to assure retaliation is not occurring.
  • Have an outside lawyer or second set of eyes review every termination decision to assure that there are legitimate, articulated reasons for termination.

    Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.