Late in the last Presidential Administration, the EEOC issued an “Enforcement Guidance” on retaliation. Out of all the potential workplace fouls that an EEOC charge can allege, retaliation is by far the most common. The sheer volume of retaliation claims has doubled since 1998. EEOC enforcers will look to the Guidance when they dig into a retaliation charge. And, I bet, so will plaintiff’s counsel – and sometimes even courts.
Should employers care? Probably so.
Chances are, the Guidance will stick around. With the appointment of its new Acting Chair Lipnic (who was appointed by President Obama as an EEOC commissioner twice), the EEOC hasn’t changed its strategic priorities. So let’s deal with it.
The Guidance basically does two things. First, it tips the EEOC’s hand on where the agency hopes to press the law to expand protections for EEO whistleblowers. Second, the Guidance lays out some “promising practices” an employer can use to reduce the risk of illegal retaliation.
We’ll cover the Guidance thoroughly at the Gulf Coast Symposium in our talk Living With the Complaining Employee. But here, let’s stick to the “promising practices.” An employer can better stay out of the EEOC’s crosshairs by paying attention to a few critical HR touch points:
- Written Policy: A clear anti-retaliation policy should strictly prohibit retaliation, then give some examples of conduct that managers might not intuitively see as retaliation. The policy should also lay out a clear path to report suspected retaliation.
- Training: Regular training on the employer’s anti-retaliation policy is highly encouraged for managers, supervisors and frankly all other employees.
- Advice and Individual Support: When an employer draws a discrimination complaint, the employer should directly communicate with each involved party and witness about how to live out the anti-retaliation policy. Anyone accused of discrimination should be trained on the tricky topic of how to put aside personal feelings and avoid the perception of retaliation.
- Proactive Follow-Up: Follow up with the accuser and all corroborating witnesses to confirm they do not feel they have suffered retaliation.
- Review Employment Actions: HR ought to review employment actions to confirm they are based on legitimate non-retaliatory reasons. That takes explanation and documentation from the decision-maker.