Earlier this year, the Equal Employment Opportunity Commission (EEOC) released its Proposed Enforcement Guidance on Retaliation and Related Issues, which follows on the heels of the Occupational Safety and Health Administration’s (OSHA) November 2015 proposed guidance Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation. Here’s an overview of both agencies’ proposals.
EEOC’s response to rise in retaliation claims
The EEOC’s current enforcement guidance on retaliation was issued in 1998. Since then, the number of retaliation charges filed with the agency has doubled, reaching a point where approximately 43 percent of all discrimination charges contain allegations of retaliation. About five years ago, retaliation became the single most likely claim to be filed with the agency.
According to EEOC Chair Jenny R. Yang, “Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws. The commission’s requests for public input on this proposed enforcement guidance will promote transparency. It will also strengthen [the] EEOC’s ability to help employers prevent retaliation and to help employees understand their rights.”
The EEOC accepted public comments on its 73 pages of proposed enforcement guidance through February 24. The proposed guidance stakes out familiar proemployee ground for the agency on hot issues, including:
- Permitting HR managers and supervisors to claim retaliation protection when they receive or investigate complaints for others; and
- Treating complaints of sexual orientation discrimination or harassment as protected based on the EEOC’s July 2015 guidance stating the agency would interpret Title VII of the Civil Rights Act of 1964‘s prohibition on discrimination “because of sex” as including sexual orientation and gender identity.
Also, the proposal highlights employee protections for violating pay secrecy policies or instructions under laws and regulations for which the EEOC doesn’t have enforcement responsibility (e.g., Executive Order 11246 and the National Labor Relations Act (NLRA)).
Courts generally give some deference to the EEOC’s guidance. As a result, we will carefully follow the process leading up to the agency’s adoption of new retaliation guidelines. When the EEOC releases its final guidance, we’ll review employers’ rights and responsibilities regarding workplace retaliation.
OSHA encourages commitment against retaliation
OSHA’s proposed guidance includes five core principles to prevent retaliation:
- Establish an executive team commitment against retaliation.
- Build a culture of no retaliation.
- Establish a process through which employees can report retaliation.
- Conduct organizationwide training on retaliation and prohibited behavior.
- Monitor the program.
Two areas of concern have arisen over OSHA’s proposed guidance.
The first area involves whether OSHA should encourage employers to implement procedures that urge employees to report complaints internally. The National Whistleblowers Center (NWC), an advocacy organization for whistleblowers, states, “Until there is a sufficient attitudinal change towards whistleblowers within the corporate community, internal programs cannot, at this time, be trusted to protect employees. Any actions taken by the U.S. Department of Labor [DOL] to provide guidance on effective internal programs, regardless of intention, may be misunderstood by whistleblowers or abused by corporate employers.”
The NWC has challenged OSHA to establish a whistleblowing/antiretaliation process that doesn’t depend on employees reporting suspicions of illegal or wrongful behavior to their employer. According to the NWC, employers exploit internal reporting programs by persuading courts to deny whistleblower protection for employees who make only internal reports.
The second area of concern revolves around OSHA’s recommendation to eliminate safety-related incentive programs, such as rewards and recognition based on the number of days a company goes without a work-related accident or injury. OSHA claims that approximately two-thirds of all job-related accidents or injuries go unreported, and an employee who reports an accident or injury that causes a group of employees to lose an incentive will face retaliatory action by coworkers or his employer.
Employer advocacy groups have raised concerns about OSHA’s stance. According to the American Exploration & Production Council, “Properly managed incentive programs—even those based on injury rates—can and do result in positive workplace improvements.”
Bottom line
As a practical matter, employers should maintain a cautious approach to preventing retaliation claims by taking the following steps:
- Make your commitment to “no retaliation” a core principle, and establish reporting avenues for suspected violations of your antiretaliation policy.
- If in doubt, assume that even internal complaints about a violation of a law or regulation are protected.
- Set up an early detection system to ensure that complaining employees don’t experience unwarranted adverse actions, especially actions that affect their pay or advancement.
- Carefully review situations in which an adverse action is set in motion or scheduled to occur days or weeks after an employee makes a protected complaint. In such circumstances, be sure that the adverse action is consistent with how other employees have been treated and that your documentation and discussion of the adverse action are free of retaliatory bias.
Whitney Brown is a shareholder with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama. She may be contacted at wbrown@lehrmiddlebrooks.com.