Employers: Hot Off The Presses, The New EEOC Retaliation Guidance!

Last February I wrote about the release of the annual EEOC report for fiscal year 2015 (which ended September 30, 2015), which noted that of 89,385 charges of workplace discrimination filed, retaliation made up almost half of these.  Quite a staggering statistic which employers should think about.

At that time the EEOC had just issued a proposed guidance on retaliation, seeking public comment.  And now it’s out!

Newspaper, People, Reading, Read, News

What Is Retaliation?

For those who still need to know what workplace retaliation is, my partner Amy wrote in May:

“Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.

Telling management about unlawful workplace discrimination is ‘protected activity’ under Title VII of the Civil Rights Act of 1964 (“Title VII”).  Title VII contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.

The EEOC considers ‘opposition’ to be complaining to anyone about alleged discrimination suffered by oneself OR others!”

Vector retaliation message

Other statutes also contain anti-retaliation provisions: the Age Discrimination in Employment Act (“ADEA”), Title V of the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act, the Equal Pay Act (“EPA”) and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

The Brand Spanking New EEOC Guidance!

Well, the EEOC just announced the release of the long-awaited “final Enforcement Guidance on Retaliation and Related Issues, which addresses all of these statutes, and “replace[s] its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate ‘interference’ provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.”

EEOC Chair Jenny R. Yang said that “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.”

She further noted:  “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

Takeaway:  As I said above, that half of all Charges of Discrimination involve retaliation is a staggering statistic — what does it say about employers’ understanding of the various anti-retaliation provisions of the anti-discrimination statutes that this number is so large?

Employers should realize that it’s far easier to prove retaliation than the underlying discrimination — and far easier to create a retaliation situation if you don’t know how to deal with a charge or claim or complaint of discrimination.  Far easier!

Read the EEOC Guidance — and, oh yes, continue to read this blog!

Kids, Reading, Book, Child, Kids Reading“Read Harry Potter later — the EEOC has a new Guidance out!”



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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]