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EEOC Issues New Enforcement Guidance on Workplace Retaliation

For the first time since 1998, the EEOC has published updated guidance on workplace retaliation. Retaliation charges are by far the most common and fastest growing type of claim filed with the EEOC, comprising nearly 45 percent of all charges it now receives. Given the surge in retaliation claims and the additional attention these claims are receiving from the EEOC, employers need to know what activities are protected from retaliation.

Among other things the new EEOC guidance addresses:

  • The scope of employee activity protected by the laws, which includes “participation” in the EEO process-by raising a claim, testifying, assisting or participating in an investigation, proceeding or hearing under these laws-as well as “opposing” discrimination.
  • Examples of retaliatory actions that would be likely to deter a reasonable person from engaging in protected activity.
  • Guidance on the ADA’s unique prohibition on “interference” with the exercise of rights under the law, which is broader than the anti-retaliation provision.
  • Best practices to minimize the likelihood of retaliation violations.

The new guidelines apply to each of the laws enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), 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). Accordingly, the scope of anti-retaliation laws in the workplace, is very broad.

To prevent your workplace from becoming another statistic in the significant growth in the number of retaliation claim, or for more information on how this government agency will analyze claims of retaliation under its new enforcement guidance, contact us at wesselssherman.com or jasherman@wesselssherman.com

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