EEOC Issues New Retaliation Guidance

Today the Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues to replace 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. The commission has also issued two short user-friendly resource documents to accompany the new guidance: a question-and-answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language. "Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination," said EEOC Chair Jenny R. Yang. "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." On Jan. 21, 2016, EEOC published a proposed guidance for public input on www.regulations.gov. The final guidance issued today reflects the commission's consideration of feedback received on the proposal from approximately 60 organizations and individuals representing a wide range of viewpoints. In preparing the final guidance, the agency also considered the stakeholder views expressed at the June 17, 2015 commission meeting held on this topic. The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, 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).  Topics explained in the new guidance include:

• The scope of employee activity protected by the law.
• Legal analysis to be used to determine if evidence supports a claim of retaliation.
• Remedies available for retaliation.
• Rules against interference with the exercise of rights under the ADA.
• Detailed examples of employer actions that may constitute retaliation.

Since EEOC's 1998 Compliance Manual section on retaliation, the Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali­ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.