Tuesday, March 15, 2016

EEOC Proposes Changes to Retaliation Guidelines for the First Time in 18 Years

The Equal Employment Opportunity Commission (EEOC) recently proposed major changes to the rules governing the way that it deals with claims of retaliation. Retaliation occurs when an employer takes negative action against an employee for making a complaint to the EEOC. If an employee complains to the EEOC alleging that his or her employer has violated federal labor laws, the employer cannot retaliate, or take negative action against, the employee for filing the complaint. So, for example, if an employee filed a complaint with the EEOC alleging sexual harassment, and the employer fired the employee as a result, this would constitute illegal retaliation. 

Since 1998, the EEOC has had rules in place that define what constitutes retaliation. Its proposed changes, not surprisingly, favor employees, greatly expanding the definition of retaliation. Employers should be aware of these rules, as violating them could lead to fines or lawsuits. 

The EEOC’s proposed rule changes expand what is considered retaliation. They would make it illegal for an employer to take adverse action against an employee who files a meritless claim with the EEOC against his or her employer. It considers adverse actions to be warnings, reprimands, and activities outside of work that have “no tangible effect on employment” if they might dissuade an employee from filing a complaint. They also require employers to make it easier for employees to report instances of retaliation. 

Interestingly, the rules disagree with a recent court case which found that an employer did not engage in illegal retaliation when it fired an employee for yelling at his employer during a mediation, “you can take your proposal and shove it up you’re a[--] and fire me and I’ll see you in court.”

The rules also note that circumstantial evidence can be used to prove employer retaliation. The employer does not need to expressly state that an employee has been disciplined for lodging a complaint with the EEOC. Instead, a “convincing mosaic” of circumstantial evidence that could lead someone to believe that there has been retaliation is all the evidence that is necessary. This could make it easier for an employee to make a speculative retaliation claim that has little factual basis. 

The guidelines offer some best practices that employers can use to minimize the likelihood that they are accused of retaliation. These include:
  • Having written anti-retaliation policies;
  • Training employees on ways that they can avoid a claim of retaliation;
  • Providing advice and guidance to those employees accused of retaliation;
  • Ensuring that proposed employment actions (like firing, demotion, etc.) are based on legitimate, non-retaliatory reasons; 
It is important to note that these rule changes are just proposed, and may undergo changes before they take effect. It is also important to remember that the 2016 presidential election could lead to these rules being changed again once a new President takes office. The Republican candidates have all proposed implementing more business-friendly policies, and, therefore, would likely roll back many of the additional protections that the EEOC gives to workers in these rules. If a Democrat wins, these protections will likely stay in place and may even be expanded. 

If you have questions about whether you are in compliance with EEOC regulations, you should consider consulting an experienced attorney. Spending a little bit of money to make sure that you are in compliance with the law may save you lots of money in the future by avoiding litigation.