On August 29, 2016, the EEOC issued new Enforcement Guidance on Retaliation which replaces its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.  According to the EEOC, retaliation is asserted in nearly 45 percent of all charges filed with the EEOC and is the most frequently alleged basis of discrimination.  EEOC Chair Jenny R. Yang said that “[t]he examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.” Beth-West-15_web

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new Guidance include:

  • The scope of employee activity protected by the law.
  • 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.

The EEOC has also issued two short user-friendly resource documents to accompany the new Guidance: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance in non-legal language.  To obtain copies of the Guidance or the Q&A or Fact Sheet for Small Businesses, go to https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.