EEOC Issues Final Guidance on Employer Retaliation

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By Patrick Dorrian

Aug. 29 — The EEOC released a final enforcement guidance document on employer retaliation under Title VII of the 1964 Civil Rights Act and other federal anti-bias laws.

The final guidance replaces the section of the Equal Employment Opportunity Commission’s 1998 compliance manual addressing retaliation and follows the agency’s Jan. 21, 2016, publication of a proposed guidance and a June 17, 2015, public meeting at which the EEOC received stakeholder testimony.

The final guidance reflects comments the EEOC received on the proposal from roughly 60 individuals and organizations, the agency said in an Aug. 29 statement. “The public input provided during 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,” EEOC Chair Jenny R. Yang (D) said.

The other laws covered by the final guidance in addition to Title VII are the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act and the Americans with Disabilities Act. The guidance also addresses the ADA’s separate “interference” provision, which prohibits employer threats, coercion or similar acts that interfere with a worker’s exercise of ADA rights.

Major topics addressed in the guidance include the scope of protected employee activity under the various laws, the legal test used to analyze the merits of retaliation claims and the remedies available to workers who experience workplace retaliation.

The agency noted that the U.S. Supreme Court has issued seven decisions involving job retaliation since the agency released its 1998 compliance manual.

Most Frequently Claimed Form of Bias

Retaliation is the most frequently claimed form of employment bias in the charges received by the EEOC, accounting for “nearly 45 percent of all charges,” Yang said. It became the top form of bias cited in EEOC charges against private sector employers in 2009 and the most frequently alleged basis of discrimination against federal workers in 2008.

The agency also issued together with the final guidance a question-and-answer document summarizing the guidance’s major points as well as a fact sheet for small businesses condensing the guidance’s highlights in nonlegal language.

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