I. INTRODUCTION
The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final Enforcement Guidance on Retaliation and Related Issues (https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues), to replace its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.
The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:
II. BACKGROUND
The federal employment discrimination laws depend on the willingness of employees and applicants to challenge discrimination without fear of punishment. Individuals rely on the statutory prohibitions against retaliation, also known as “reprisal,” when they complain to an employer about an alleged equal employment opportunity (EEO) violation, provide information as a witness in a company or agency investigation, or file a charge with the Equal Employment Opportunity Commission (Commission or EEOC).
The Guidance sets forth the Commission's interpretation of the law of retaliation and related issues. In crafting the Guidance, the Commission analyzed how courts have interpreted and applied the law to specific facts. Regarding many retaliation issues, the lower courts are uniform in their interpretations of the relevant statutes. The Guidance explains the law on such issues with concrete examples, where the Commission agrees with those interpretations. Where the lower courts have not consistently applied the law or the EEOC’s interpretation of the law differs in some respect, this Guidance sets forth the EEOC’s considered position and explains its analysis. The positions explained below represent the Commission’s well-considered guidance on its interpretation of the laws it enforces. The Guidance also serves as a reference for staff of the Commission and staff of other federal agencies who investigate, adjudicate, litigate, or conduct outreach on EEO retaliation issues. It will also be useful for employers, employees, and practitioners seeking detailed information about the EEOC’s position on retaliation issues, and for employers seeking promising practices.
Retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces. Each of the EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Section 501), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA). These statutory provisions prohibit government or private employers, employment agencies, and labor organizations from retaliating because an individual engaged in “protected activity.” Generally, protected activity consists of either participating in an EEO process or opposing conduct made unlawful by an EEO law.
The breadth of these anti-retaliation protections does not mean that employees can immunize themselves from consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with an enforcement agency. Employers remain free to discipline or terminate employees for legitimate, non-discriminatory, non-retaliatory reasons, notwithstanding any prior protected activity. Whether an adverse action was taken because of the employee’s protected activity depends on the facts. If a manager recommends an adverse action in the wake of an employee’s filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.
Short companion publications on retaliation are available on the EEOC’s website:
Questions and Answers: Enforcement Guidance on Retaliation and Related Issues https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm
Small Business Fact Sheet: Retaliation and Related Issues https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm