10 Things That the EEOC's New Retaliation Guidance Considers 'Protected Activity'

Author:Mr Jeffrey Polsky
Profession:Fox Rothschild LLP

The Equal Employment Opportunity Commission issued its new "Enforcement Guidance on Retaliation and Related Issues" on On August 25, 2016. Careful readers will be able to deduce from the section titled "Expansive Definition" that the EEOC uses an expansive definition of what constitutes protected activity. This activity is "protected" in the sense that any adverse action taken against someone for engaging in it is, by definition, retaliatory.

The EEOC Enforcement Guidance lists the following types of protected activity:

Complaining about discrimination against oneself or others - This is the prototypical protected activity. Threatening to complain about discrimination against oneself or others Providing information in an employer's investigation of discrimination or harassment Refusing to obey an order reasonably believed to be discriminatory "Passive resistance" - The EEOC gives the example here of a supervisor refusing a request to dissuade subordinates from filing EEO complaints. Apparently, the refusal doesn't need to be articulated. Just not acting on the request is considered protected. Advising an employer on EEO compliance Resisting harassing behavior - The EEOC gives the example of an employee telling a supervisor to "leave me alone" and "stop it."...

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