EEOC Seeking Comments on New Enforcement Guidance Concerning Retaliation in the Workplace
Late last month, on January 21, the EEOC published its draft EEOC Enforcement Guidance on Retaliation for public comment. The comment period ends on February 24, 2016. These Guidelines would replace the current Enforcement Guidelines, which have been in place since 1998.
Retaliation is the most prevalent claim in EEOC charges. In fact, in fiscal year 2014, over 42% of all charges filed with the EEOC included claims of retaliation. That is up from less than 29% only ten years earlier (FY 2004). According to DFEH statistics, retaliation was also the most prevalent basis for charges filed for workplace violations of the California Fair Employment and Housing Act as well (just ahead of disability discrimination).
Although the Enforcement Guidance does not carry the same force of law as a statute or regulations, it is relied on regularly by state and federal courts. If you wish to review the draft guidelines, or better yet, are considering commenting, a PDF copy of the entire proposed regulations are available by clicking here.
Retaliation claims are not only the most popular claims alleged, but they are also some of the most difficult to defend. When considering employment termination decisions or reviewing and approving discipline or termination actions, it is important to make sure that there is no evidence indicating that the adverse action stems from any type of illegal retaliatory motive. We will continue to keep you updated on the EEOC’s next steps with these proposed new guidelines on retaliation.