Employment Update: Watch Your Back – EEOC Updates Enforcement Guidance on Retaliation

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Employment Update: Watch Your Back – EEOC Updates Enforcement Guidance on Retaliation

From the desk of John M. KreutzerFor the first time since 1998, the EEOC has issued enforcement guidance on what it considers workplace retaliation. The new Enforcement Guidance on Retaliation and Related Issues provides guidance to employers on how to reduce the likelihood of a retaliation claim. The guidance also addresses the law as it relates to the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), and the Equal Pay Act.

Currently, retaliation is the most frequent basis for discrimination claims made by employees, surpassing race discrimination in 2009. Charges of retaliation currently account for 45 percent of all charges received by the EEOC.

The new guidance does not change the elements of the claim, which requires employees to allege that they suffered an adverse employment action because they engaged in protected activity. However, it broadens the EEOC definition of each element. For instance, the EEOC adopted the position that retaliation can be established by creating “a ‘convincing mosaic’ of circumstantial evidence” that would support the inference of retaliation. As an example of this approach, the EEOC pointed to a termination that occurred five years after an employee filed a discrimination lawsuit. It said even if a lengthy amount of time had passed between a protected activity and an adverse action, evidence other than temporal proximity could be revealed to establish a causal connection.

The guidance also offered some best practices employers can employ to minimize the likelihood of retaliation violations. The EEOC included examples of model anti-retaliation policies that not only outline what retaliation is, but also provide specific examples of retaliation that managers and supervisors may not...

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