EEOC Issues New Guidance On Retaliation Claims, Part 9: Promising Practices and Conclusion

On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  This is the ninth and final post in our series, and it examines the EEOC’s five categories of “promising practices” for helping businesses comply with anti-retaliation laws.

 The first recommendation is that “Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer's expectations with user-friendly examples of what to do and not to do.”  This includes examples of what constitutes protected acts and actionable conduct, and guidelines on how to avoid actual or perceived violations.  It also encourages creating reporting and informal resolution mechanisms for retaliation claims, while reviewing existing policies to remove any potentially illegal policies.  In particular, the Guidance notes that policies that deter employees from making pay inquiries may violate state or federal law.

The second recommendation is to create training programs for all employees, including managers and supervisors.  Such training should include a discussion of the written anti-retaliation policy, as well as the standards of conduct that are expected.  Managers and supervisors in particular should be advised on managing their emotions in decision-making and ways to be proactive in handling discrimination allegations.  The Guidance also advises periodic refresher courses.

The third recommendation suggests that an employer's response to claims of an EEO violation should automatically include giving information to all parties and witnesses on the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace, so as to avoid potential retaliatory actions. On a related note, the fourth recommendation suggests employers follow up on pending EEO matters.

Finally, the Guidance suggests that employers “consider ensuring that a human resources or EEO specialist, a designated management official, in-house counsel, or other resource individual reviews proposed employment actions of consequence to ensure they are based on legitimate non-discriminatory, non-retaliatory reasons.”  These reviewers should require decision makers to identify their reasons for taking an action and document them appropriately, scrutinize performance evaluations to ensure they do not reflect bias, and when retaliation is found, advise of remedial measures to prevent future occurrences.  

By following these recommended practices, employers can significantly reduce the likelihood that an employee will experience, or bring a claim alleging, retaliation following a discrimination allegation.  

The full Guidance can be found here:

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