EEOC Updating Its Game Plan for Investigating Retaliation Charges

Author: Michael Cardman, XpertHR Legal Editor

UPDATE: The EEOC has issued its final Enforcement Guidance on Retaliation and Related Issues, which includes feedback received on the proposal.

February 5, 2016

The Equal Employment Opportunity Commission (EEOC) has proposed updates to its manual for processing and investigating charges, making cause determinations and considering litigation relating to retaliation.

The updated manual recommends policies and training for employers that wish to prevent illegal retaliation and stay on the agency's good side.

The anti-discrimination laws enforced by the EEOC -- Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act and the Equal Pay Act -- all prohibit employers from firing, demoting, harassing or otherwise retaliating against applicants or employees because they complained about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other "protected activity" under those laws.

The EEOC said it needs to update its Compliance Manual because:

  • The proportion of charges alleging retaliation has "essentially doubled" since the last version of the manual was released in 1998, constituting 43 percent of all charges received by the EEOC in fiscal year 2014; and
  • Courts have issued significant rulings regarding employment-related retaliation, including University of Texas Southwestern Medical Center v. Nassar, in which the Supreme Court ruled that retaliation claims filed under Title VII of the Civil Rights Act are subject to a higher standard of proof than discrimination claims, and Kasten v. Saint-Gobain Performance Plastics Corp., in which the Supreme Court ruled that oral complaints can constitute a protected activity as well as written complaints.

The EEOC recommends that employers adopt plain English anti-retaliation policies that include:

  • Examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation because they would deter a reasonable person from engaging in protected activity;
  • Proactive steps for avoiding actual or perceived retaliation, including interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • A reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • A clear explanation that retaliation can be subject to discipline, up to and including termination.

The EEOC also says that employers should, among other things:

  • Train all managers, supervisors and employees on their written anti-retaliation policy;
  • Send a message from top management that retaliation will not be tolerated, provide information on policies and procedures in several different formats, and hold periodic refresher training; and
  • Tailor training to address any specific deficits in EEO knowledge and behavioral standards that have arisen in that particular workplace, ensuring that employees are aware of what conduct is "protected activity" and providing examples on how to avoid problematic situations that have actually manifested or might be likely to do so.

The public is invited to comment on the proposed changes. The comment period ends February 24.