By Deryn Sumner

Last month, the EEOC issued revised Enforcement Guidance on Retaliation and Related Issues.  The Commission last issued such guidance in 1998.  Since then, Congress passed the Americans with Disabilities Act Amendments Act, which came into effect on January 1, 2009, as well as the Genetic Information Nondiscrimination Act, the Lilly Ledbetter Fair Pay Act, and other laws which cross paths with claims of retaliation.  Additionally, the Supreme Court issued its decision in Burlington Northern v. White, 548 U.S. 53 (2006), which addressed claims of retaliation in the workplace and held that “context matters” in determining whether an employee’s rights have been chilled because of engagement in protected EEO activity.  So, it’s good to see that the Commission has updated Enforcement Guidance to address these changes.  Just as it did with the Enforcement Guidance issued regarding reasonable accommodation claims, the Commission concurrently issued a question and answer publication to accompany the Enforcement Guidance.

The press release issued by the Commission to announce the publication of this Enforcement Guidance includes a quote from the EEOC’s Chair, Jenny R. Yang, noting that retaliation is asserted in almost 45 percent of charges received by the EEOC, which makes it the most frequently alleged basis of retaliation.  Regarding the federal sector complaints process, the press release noted that retaliation has been the most frequent basis alleged since 2008, and that findings of discrimination on the basis of retaliation comprise between 42 and 53 percent of all findings from 2009 to 2015.  Speaking as someone who reviews the decisions issued by the Office of Federal Operations each year, this statistic does not surprise me.

As we teach during EEOC Law Week, managers often falter after receiving notice that an employee has filed an EEO complaint. Remember that protected activity includes serving as a witness for a co-worker’s complaint, filing your own complaint (including starting the informal counseling process), and requesting reasonable accommodation.  Even if the underlying activity is not found to have merit, an employee can still succeed on a subsequent complaint if he or she can show that agency management took actions to treat the employee differently after learning of the protected activity, or made comments that had the result or intent of chilling the employee’s engagement in protected activity.  When considering claims of retaliation, it’s important to remember two key points.  First, as I’ve discussed in this space in January of this year, what states a claim of retaliation under the Commission’s case law is broader than what states a claim of discrimination.  That is to say, a claim that could be dismissed for failure to state a claim under any other basis could feasibly state a claim of retaliation.

The updated Enforcement Guidance covers what protected activity is, the applicable legal analysis to use to analyze claims of retaliation, the remedies available to successful complainants who file claims of retaliation, and guidance regarding how interference with the exercising of rights under the ADA constitute retaliation.  The Enforcement Guidance also includes specific examples of what constitutes an adverse employment action. The complete Enforcement Guidance is available on the Commission’s website here:   [email protected]

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