In the spring, we notified you that the U.S. Equal Employment Opportunity Commission (EEOC) proposed changes to its guidance on workplace retaliation. The EEOC recently released its final enforcement guidance, which replaces its 1998 Compliance Manual section on retaliation.

The guidance addresses retaliation under several federal statutes including, but not limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act of 2008 (GINA). Specifically, the guidance addresses the scope of employee activity protected by law, legal analysis to be used to determine if evidence supports a claim of retaliation, remedies available for retaliation, and rules against interference with the exercise of rights under the ADA.

The guidance also includes a section on “promising practices” that employers may want to consider in order to minimize the risk of retaliation. The includes practical tips and examples of what does and does not amount to retaliation.

The EEOC also simultaneously released two documents that help explain the guidance. One is a question and answer publication that summarizes the guidance document. The other is a short Small Business Fact Sheet that extrapolates the larger points of the guidance in layman’s terms.

Allegations of employer retaliation have risen drastically in the last six years. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by the EEOC in 2015. Employers are advised to review the guidance and supplemental materials thoroughly.

Our attorneys are well versed in assisting clients in providing tailored guidance regarding retaliation allegations and defense of retaliation claims. For further information, please contact:

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Christopher P. Maugans (716.710.5825; cmaugans@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.

September 1, 2016