No employer trying to build diversity in its workforce is likely to get very far if its culture tolerates discrimination, harassment, and retaliation against employees based on race, gender, age, disability, or any other characteristic protected by law. Not only does such a culture work against recruitment and retention of diverse talent, it also invites legal trouble. That’s why employers are taking a close look at new guidance from the Equal Employment Opportunity Commission (EEOC) addressing retaliation claims. 
The EEOC issued its new guidance on August 29, replacing previous guidance released in 1998. In addition to the guidance document, the EEOC also released a question-and-answer document and a fact sheet for small business. The material from the EEOC follows a surge of retaliation claims in recent years.
“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” EEOC Chair Jenny R. Yang said in releasing the new guidance. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”
In announcing the new guidance, the EEOC pointed out that the document addresses retaliation under each of the statutes the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act.
The EEOC announcement says the new guidance explains topics including:
- The scope of employee activity protected by law.
- The legal analysis to be used to determine if evidence supports a claim of retaliation.
- Remedies available for retaliation.
- Rules against interference with the exercise of rights under the ADA.
- Detailed examples of employer actions that may constitute retaliation.
Avoiding trouble
With the number of retaliation claims on the rise and the EEOC giving new attention to the issue, employers need to understand how to prevent trouble. Vanessa L. Goddard, an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia, wrote on the problem in the June issue of West Virginia Employment Law Letter.
Goddard points out that retaliation claims often accompany other claims of discrimination or harassment, but even if those underlying claims eventually disappear the retaliation claim often survives.
So how can employers avoid retaliation dangers? “You have a company antidiscrimination policy, so use it,” Goddard writes. “Be sure you enforce your policies across the board and treat employees consistently.” She also points out the importance of culture. “Make sure that eliminating discrimination is a value held from the top down in your organization. Lay down the law, because fewer discrimination claims equals fewer retaliation claims.”
Goddard also advises being careful to “cross all your t’s and dot all your i’s” when investigating discrimination or harassment claims. Keeping details as confidential as possible is “particularly vital with regard to claims of retaliation,” she says. “The fewer people who know about the complaint and the investigation, the fewer people who could possibly retaliate against the employee for complaining.”
Marrielle B. Van Rossum, an attorney with Sulloway & Hollis, P.L.L.C. in Concord, New Hampshire, also addressed retaliation in an April article in New Hampshire Employment Law Letter. In her article, she reminds employers that “‘Don’t get mad – get even’ is generally poor advice, but it’s especially unwise in the workplace.”
Van Rossum points out that it may be tempting to “‘get back’ at a subordinate for making a discrimination complaint, even if the complaint is ultimately found to be unsupported,” but HR professionals, supervisors, and managers must keep from “making an uncomfortable situation worse by taking action against an employee who reports discrimination in the workplace or files an EEOC charge.”
Promising practices
The EEOC’s question-and-answer document includes a list of “promising practices” that the agency says employers may wish to consider to minimize the likelihood of retaliation violations. Those practices are:
- Maintain a written, plain-language antiretaliation policy and provide practical guidance on the employers’ expectations with user-friendly examples of what to do and not to do.
- Consider training all managers, supervisors, and employees on the employer’s written antiretaliation policy. Also, send a message from top management that retaliation will not be tolerated.
- Provide managers and supervisors alleged to have engaged in discrimination with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
- Check with employees, managers, and witnesses during the pendency of an equal employment opportunity matter to inquire if there are any concerns regarding potential or perceived retaliation. Such action, the EEOC says, may help spot issues before they fester and they can reassure employees and witnesses of the employer’s commitment to protect against retaliation.
- Require decision makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. The agency suggests that employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations. Also, the list suggests that employers emphasize consistency to managers.