EEOC’s New Policy Provides Concrete Tips for Avoiding Retaliation Claims

In 2016, the federal Equal Employment Opportunity Commission (EEOC) updated its enforcement policies concerning retaliation. According to the EEOC, employees who complain about discrimination or who participate in proceedings designed to combat discrimination, such as EEO hearings, frequently believe that such acts lead to retaliation, including termination, demotions, or exclusion from company social events. In fact, retaliation is the most common discrimination complaint now filed with the EEOC. As a result, the EEOC is increasingly focusing its attention on investigating it, and filing charges to stop it.

For employers concerned about exposure to these increasingly common claims, the update provides a 2-part road map of sorts for steering clear of them:

1. Acts the EEOC will consider evidence of retaliation; and,
2. Policies which, according to the EEOC, prevent it.

Signs of Retaliation

According to the update, the EEOC will suspect retaliation when:

• Adverse acts such as a demotion, change in pay, termination, or reassignment follow shortly after a discrimination complaint or participation in an EEO proceeding.
• Management makes oral or written statements at any time reflecting ill will toward those who complain.
• Employees are treated inconsistently such that an employee who is known as a “troublemaker” is treated more harshly than those who do not speak up.
• An employer offers inconsistent explanations for an adverse action – first offering one reason and then backtracking and offering a different reason.

What Employers Can Do

And, in turn, when will the EEOC be less inclined to suspect that an employer has retaliated? According to the EEOC, the following company policies discourage retaliatory conduct:

1. An express written policy disseminated to all employees prohibiting retaliation against those who complain about discrimination or who take steps to stop it;
2. An open door complaint policy such that any employee who is concerned about retaliation can easily report it and be heard;
3. Regular training of managers on how to avoid retaliation; and
4. Regular follow-up on any informal complaints of suspected retaliation to ensure retaliation has not occurred or is no longer occurring.

The EEOC’s new enforcement policies demonstrate a renewed interest in prosecuting retaliation claims. To avoid those claims, employers should carefully review their own anti-retaliation efforts and ensure they incorporate the policies promoted by the EEOC.