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August 31, 2016

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues

On August 29, 2016, the United States Equal Employment Opportunity Commission (the “EEOC”) issued its final “Enforcement Guidance on Retaliation and Related Issues” (the “Guidance”) to address recent court decisions and legal developments regarding retaliation under several federal statutes. It will replace the EEOC’s 1998 Compliance Manual’s section on retaliation. The Guidance can be found here.

The Guidance addresses retaliation under each of the equal employment opportunity (“EEO”) 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). The Guidance discusses each element of retaliation, specifically (1) protected activity, (2) materially adverse action, and (3) causal connection between the protected activity and materially adverse action, and includes examples of protected and unprotected employer actions based on recent court decisions. It also discusses the separate “interference” provision under the ADA, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights, as well as remedies under the EEO statutes.

In the Guidance, the EEOC also lists five “promising practices” to minimize the likelihood of retaliation violations: (1) written employer policies; (2) training; (3) anti-retaliation advice and individualized support for employees, managers and supervisors; (4) proactive follow-up; and (5) review of employment actions to ensure EEO compliance.

Takeaway for Employers

According to the EEOC, retaliation is the most frequently alleged basis of discrimination. We remind employers to always consider all federal and state anti-retaliation statutes when weighing whether to take an adverse action against an employee. Employers should also seek to implement and abide by the five “promising practices” to reduce exposure to liability.

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If you have any questions regarding the Guidance, please do not hesitate to contact us.