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Helping You Navigate Workplace Issues in California

Painting a Bullseye: New EEOC Guidelines on Retaliation in the Workplace

Think you’re being retaliated against in the workplace? You’re not alone. Did you know that retaliation is the most common workplace issue alleged by employees in federal employment? According to the Equal Employment Opportunity Commission (EEOC), nearly 50 percent of complaints received involved retaliation allegations, while 42 percent of the EEOC’s findings of discrimination concerned retaliation. Since 2008, the EEOC reports that “retaliation has been the most frequently alleged basis of discrimination in the federal sector.”

As a result of this ongoing trend, the EEOC has just issued new enforcement guidance on retaliation in the workplace. To understand what this means for employees, it is helpful to take a closer look at retaliation claims and the elements of the new guidelines.

Learning More About Retaliation at Work

Do you know what retaliation at work means? As the EEOC explains, retaliation may occur in situations when a manager or employer fires, demotes, harasses, or in another manner retaliates against an employee because that employee files a discrimination claim, participates in a discrimination claim proceeding, or indicates opposition to discrimination in the workplace. This kind of retaliation is prohibited by law.

In order to establish actionable retaliation, federal law requires that an employee show that the employer’s action against the employee was one which would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

In Burlington Northern & Santa Fe Ry. Co. v.White, 548 U.S. 53 (2006), the Supreme Court declared that an employee with a retaliation claim does not need to show or prove an ultimate adverse action (like termination), because “[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” In short, retaliation is not just termination, suspension, or demotion, but can simply be action that “alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee. Helm v. J.H.

Gatewood Emergency Services, P.A. 2012 WL 2793134, 7 (M.D.Fla.,2012)

The EEOC has not updated its retaliation guidance since 1998, so the recent publication of new enforcement guidance is something that workers and employers alike should pay attention to. What do you need to know about the new guidelines?

What Does it Mean to Be Retaliated Against at Work? A Look at the New EEOC Guidelines

The new guidance from the EEOC is expansive, but some of the following are among most significant elements of the new enforcement guidance:

  • Clarification of the elements of a retaliation claim, including what participation in and opposition to discrimination claims can include;
  • Clarification of who is protected from retaliation in the workplace;
  • Prohibition of taking “materially adverse action” against an employee because of their participation in a protected activity;
  • Information about third-party retaliation and who can bring a claim;
  • Clarification of the causation standard for retaliation claims brought against private and government employees, as well as what type of evidence is required to prove causation;
  • Examples of evidence that can support a retaliation claim, and examples of evidence that can defeat a retaliation claim;
  • Information about the prohibition of coercive behavior, threats, and other “interference” acts involving an employee’s rights under the Americans with Disability Act (ADA); and
  • Remedies for a finding of retaliation, which can include both temporary or preliminary relief, as well as compensatory and punitive damages.

The new enforcement guidance also provides a section of “promising practices,” which aims to help employers prevent incidents of retaliation in the first place. This section of the enforcement guidance emphasizes how some of the following preventive measures should exist in the workplace:

  • Written employer policies making clear that there is an anti-retaliation policy in place;
  • Training sessions on retaliation and retaliation prevention;
  • Advice for managers and employers who are facing allegations of discrimination for workplace interactions;
  • Advice for employers concerning pro-active follow-ups with any employees involved in a discrimination or retaliation claim; and
  • Use of a specified reviewer to ensure compliance with the EEOC during a retaliation claim.

If you have been the victim of retaliation at work, you should speak with an experienced Florida labor lawyer as soon as possible. Contact Scott • Wagner and Associates to discuss your options.

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* Cathleen Scott is licensed to practice in Florida only.

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