EEOC Ratchets Up Focus On Retaliation: EEOC Publishes First New Enforcement Guidance On Retaliation In Nearly Two Decades

Author:Ms Trish Higgins, Shannon B. Seekao and Annabelle Chan

The EEOC seeks public comment on its new Enforcement Guidance on Retaliation and Related Issues, which will supersede the agency's last-issued guidance on the topic from 1998. The updated guidance addresses several significant rulings by the Supreme Court and lower courts from the past two decades. The guidance was also informed by public input on retaliation and best practices that the Commission gathered from its June 17, 2015 meeting on "Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention." The 30-day input period on the guidance ends on February 24, 2016.

In updating its guidance, the EEOC notes that the percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation filed with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged claim since 2008, and retaliation violations comprise 53 percent of all violations found in the federal sector in fiscal year 2015.

Notably, the new guidance sets forth the EEOC's position on several unsettled points of law:

Distinctions Between Participation in Protected Activity vs. Opposition to Perceived Discrimination: According to the EEOC, an individual can satisfy the participation clause irrespective of whether his or her underlying allegation of discrimination is reasonable, whereas the opposition clause only applies to those who object to practices they reasonably believe are unlawful. Furthermore, contrary to the position taken by some federal courts, the EEOC deems "participation" to encompass internal complaints regardless of whether they were made in connection with a formal charge filed with the EEOC or other state or local equivalent. Rejection of the "Manager Rule": The guidance makes clear that the EEOC and U.S. DOL reject the "manager rule" adopted by some courts, which requires that managers must step outside their management role and assume a position adverse to the employer in order to engage in protected activity. The EEOC reasons that the "manager rule" "discourages supervisory employees from fulfilling their duty to report harassment and participate in internal investigations because it leaves them unprotected from retaliation." Thus, in the EEOC's view, anti-retaliation provisions in EEO laws should protect all employees- even managers, human resource personnel...

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