Federal Government Publishes Final Enforcement Guidance on Retaliation Claims

Mary, an African-American employee, complained to her co-workers that her pay was lower than that of Caucasian employees doing similar work. Upon overhearing these conversations, Mary’s supervisor reprimanded her for “distracting” her co-workers with discussions about perceived pay discrimination. The supervisor may be surprised to learn such discipline may very well constitute unlawful retaliation.

Knowing when and how to discipline employees is a vital part of any HR manager or supervisor’s job.  See, for example, Discrimination and Retaliation Claims; An Employer’s Lesson In Thorough Documentation (May, 2014) and Barbosa v. IMPCO – Terminating an Employee for Mistakenly Falsifying Time Card Violates Public Policy (December, 2009).

Under federal law, retaliation occurs when an employer takes disciplinary steps because an applicant or employee has engaged in “protected activity” which means asserting rights protected by law or opposing a perceived unlawful practice.

On August 29, 2016 the federal Equal Employment Opportunity Commission (EEOC) published an Enforcement Guidance on Retaliation and Related Issues (Guidance), a Small Business Fact Sheet: Retaliation and Related Issues, and a Question and Answer Publication (FAQs) to help employers better understand and prevent workplace retaliation.

In the press release announcing the Guidance’s issuance, EEOC Chair Jenny R. Yang stated, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination. The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

The Guidance defines retaliation under federal law, explains what actions are protected from retaliation, and describes the limited circumstances under which employers may discipline someone who has engaged in “protected activity.”

The Guidance and FAQs advise employers to take the following steps to prevent unlawful retaliatory conduct:

• Maintain a written, plain language anti-retaliation policy.
• Train all managers, supervisors and employees on the company’s anti-retaliation policy.
• Caution anyone accused of discriminatory actions not to seek revenge.
• Proactively meet with employees, managers, and witnesses during ongoing investigations to inquire if there are concerns about potential or perceived retaliation.
• Confirm actions and documentation in response to workplace grievances are legitimate, non-discriminatory and non-retaliatory.
• Ensure performance evaluations are consistent, objective and free from unlawful motivations.

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

September 21, 2016