The U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidance on retaliation claims under the statutes it enforces, including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act. According to the EEOC’s press release, 44.5 percent of the discrimination charges it received in its last fiscal year included a retaliation claim. The guidance was last updated in 1998. The revised guidance incorporates court decisions issued since then and explains how the agency analyzes retaliation claims today.
Some of the highlights of the revised guidance include:
Defining “protected activity.” “Protected activity” includes participating in an EEO process (e.g., filing a claim or testifying as a witness in an investigation) or opposing discrimination (e.g., requesting reasonable accommodation for a disability or intervening to protect others from discrimination).
Can employees discuss pay and salaries? Discussing compensation may be a protected activity if it’s for the purpose of discovering or complaining about potential discrimination on the basis of race, sex, or other protected status.
What is “retaliation”? “Retaliation” is any activity that would deter a reasonable person from engaging in protected activity, even if the retaliation occurs off the job.
How can employees show that retaliation occurred? To prove retaliation in the private sector, a worker must prove that “but for” the employer’s retaliatory motive, the employer wouldn’t have taken the adverse action.
What if the employer disagrees with the employee’s accusation of discrimination? An employer can defend itself by showing it was unaware of the protected activity, or that there was a legitimate non-discriminatory motive for the action, or the action would have happened anyway.
Retaliation, interference, and the ADA. The ADA prohibits not only retaliation, but also “interference” with an employee’s exercise or enjoyment of ADA rights.
Responding to a discrimination complaint. After an EEO complaint is filed, employers should instruct all participants that retaliation is prohibited. It’s especially important for employers to take practical steps to help an accused manager/supervisor avoid retaliation. This includes providing specific examples of what could be considered to be retaliation and offering resources for the individual to air concerns and deal with personal feelings while handling necessary business tasks.
Ensure that employment practices aren’t discriminatory. Assign an HR person, EEO specialist, or other appropriate person to review proposed employment actions to ensure they aren’t based on retaliatory motives.
Tips: Even if an underlying EEO complaint is ultimately found to be invalid, you as the employer can still be held liable if the employee experiences retaliation. Ask your Vigilant employment attorney for help investigating and responding to EEO complaints, and see our Legal Guide, “Retaliation Claims: How to Avoid Them.”