The U.S. Equal Employment Opportunity Commission (EEOC) recently took its 18-year-old enforcement guidance on retaliation off the shelf, dusted it off, and released a proposed revision on Jan. 21 that pushes the envelope in significant ways. The Proposed Enforcement Guidance on Retaliation and Related Issues, which the EEOC says "serves as a reference for commission staff investigating charges alleging retaliation and related issues," reveals some unclear areas of retaliation law that the EEOC would like to see resolved, and employers would be well-advised to pay close attention. If the EEOC has its way, these areas will not be resolved in employers' favor. This proposed guidance overhauls its regulatory interpretation of the standards for proving retaliation under the various civil rights laws including Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Equal Pay Act.
If the Equal Employment Opportunity Commission (EEOC) has its way, employers will now be vulnerable to an even broader range of lawsuits for unlawful retaliation, pursuant to the recently released draft update to the EEOC's 1998 enforcement guidance on retaliation. The EEOC draft update primarily (i) expands the scope of activities protected under the EEO statutes and (ii) broadens the range of employer responses that would be "retaliation" under those statutes. Retaliation already is the leading subject of EEO charges. In 2014, charging parties alleged retaliation in nearly 43% of the charges with the EEOC.
Objectives of the Presentation
- What is retaliation
- The practical impact of the EEOC's newly released draft enforcement guidance on retaliation
- The EEOC's 7 recommended training strategies and 4 things it says can help employers avoid retaliation claims altogether
- Laws under which employees may lodge retaliation claims against your organization
- How you can unwittingly retaliate, even when your employee complains about something that isn't even illegal or wrong
- HR mistakes concerning requests for accommodation and sanctioned leave
- Case studies of employers successfully sued for retaliation
- Steps you can take to avoid retaliation and minimize your legal risks
- And much more!
The odds of being subjected to retaliation claims are high. Minimizing your exposure to potential liability starts by taking a proactive approach to creating and maintaining a retaliation-free work zone. Through timely intervention, customized training, and this webinar you can achieve this!
Why Should you Attend
Perhaps the most instructive portion of the 73-page guidance comes at the end, where the EEOC recommends some "best practices" for employers to implement. While following the EEOC's suggestions will not eliminate the possibility that a retaliation claim will be lodged, taking heed of them would likely help reduce the likelihood that unlawful retaliation will occur, and strengthen an employer's position in the face of a complaint. An employer that fails to implement these "best practices" may be viewed with a jaundiced eye by EEOC staff during a complaint or compliance investigation.
Who can Benefit
- EEOC suggested Anti-Retaliation 'Best Practices'
- Analyzing how 'Participation' Encompasses Internal Complaints
- Why the EEOC is out for Rejection of the 'Manager Rule'
- Protected Opposition Conduct
- The hidden trap of Employees talking Dollars, as the EEOC Insists
- Reviewing the EEOC's Broad View of 'Adverse Action'
- What it means when the EEOC Advocates for a 'Mosaic' Approach to 'But For' Causation
- Human resources practitioners
- Office Managers
- Financial Officers
- In-House Counsel
- Affirmative Action/EEO Officers
- Federal Contractors
- Employee Relations Executives
- Chief Executive Officers
- Financial Executives
The federal EEO statutes, such as Title VII, the ADA, and the ADEA, prohibit retaliation for engaging in a protected activity under those statutes. Protected activities are typically categorized as either (i) participating in an EEO process or (ii) opposing a practice made unlawful by one of the EEO statutes. Participation in an EEO process may include providing witness information, or otherwise assisting in an EEO or internal company investigation. Opposing a practice made unlawful by an EEO statute may include, for example, complaining to one's employer regarding alleged discrimination, resisting unwanted sexual advances, or refusing to obey managerial orders reasonably believed to be discriminatory.
The EEOC's draft updated Guidance greatly expands the scope of employee activity protected under the EEO statutes. For example, in the past, courts regularly held that an employee was not "participating" in an EEO process by contributing to an internal company investigation unless the investigation was in conjunction with a formal EEO charge. According to the updated Guidance, however, participation in an entirely internal company investigation, absent any formal EEO charge, would be considered protected activity.
Further, under the updated Guidance, an employee may allege retaliation against his or her employer where a family member working for the same employer suffers adverse employment action as a result of the employee's own protected activities.
Finally, the draft updated Guidance also interprets Title VII's definition of an employer's "adverse employment action" to reach beyond hiring, firing, and promotional decisions. According to the EEOC's proposals, an employee may justifiably assert a claim of retaliation under Title VII for more subtle adverse employment actions, such as reprimands, threats, transfers to less desirable work locations, negative evaluations, or assignment of less desirable work.