A Refresher on Retaliation Based on the EEOC’s Revised Retaliation Guidance

Retaliation is now the most frequently alleged basis of discrimination. The number of retaliation claims has doubled since 1998. In fiscal year 2015, retaliation accounted for nearly 45% of the claims the Equal Employment Opportunity Commission received. Despite this, the Commission had not revised its guidance on retaliation since it was first issued in 1998.

That changed on August 29th when the Commission issued its Enforcement Guidance on Retaliation and Related Issues, which replaced in its entirety the Commission’s 1998 Compliance Manual section on retaliation. Along with the Guidance, the Commission issued two “user-friendly” resource documents: a question-and-answer sheet that addresses the Guidance’s major points and a fact sheet for small businesses.

The Guidance is a sub-regulatory document that provides the Commission’s interpretation of the law on employment-related retaliation. Since the Commission published the retaliation section of its Compliance Manual in 1998, the Supreme Court and other federal courts issued numerous significant rulings regarding retaliation. The Commission analyzed those rulings and how courts have interpreted and applied EEO laws to specific facts. The Guidance explains the law with concrete examples when the courts have applied the law uniformly. When there is disagreement among the courts, the Guidance sets forth the Commission’s position.

The Guidance is meant to be a reference for Commission staff and staff of other federal agencies who investigate and litigate EEO retaliation issues. Although not law, courts often look to documents like the Guidance and defer to the Commission’s position.

Employers should follow the Commission’s lead and take the time to refresh their understanding of retaliation claims.

Although the Guidance does not lay out any groundbreaking new rules, it is a useful reminder to employers that they must remain mindful of potential claims for retaliation. If you have any questions about retaliation claims or the Guidance, please contact one of Conn Kavanaugh’s employment lawyers for assistance.

THOMAS J. GALLITANO

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ALEXIS P. THERIAULT

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