EEOC Seeks Public Input on Draft Proposed Enforcement Guidance on Retaliation and Related Issues

U.S. Equal Employment Opportunity Commission (EEOC)
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WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) announced today, January 21, 2016, that it has voted to seek public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws. The Commission's enforcement guidance documents inform the public about the Commission's interpretation of the law and promote voluntary compliance.

All of the laws EEOC enforces make it illegal to fire, demote, harass, or otherwise "retaliate" against applicants or employees because they complained to their employer about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other "protected activity" under employment discrimination laws.

The Commission's last guidance update on the subject of retaliation was issued in 1998. Since that time the Supreme Court and lower courts have issued numerous significant rulings regarding retaliation under employment discrimination laws.

"Retaliation is a persistent and widespread problem in the nation's workplaces," said EEOC Chair Jenny R. Yang. "Ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal civil rights laws. The Commission's request for public input on this proposed enforcement guidance will promote transparency. It will also strengthen EEOC's ability to help employers prevent retaliation and to help employees understand their rights."

The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.

The draft guidance is available for review at http://www.regulations.gov/#!docketDetail;D=EEOC-2016-0001

The 30-day input period ends on February 24, 2016. Please provide input in narrative form; do not submit redlined versions of the document. The public is invited to submit its input using www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. 

The input provided will be posted publicly on www.regulations.gov and may show email addresses. Please do not include other personal information that you would not want made public, e.g., home address, telephone number, etc.

After reviewing the public input received, the Commission will consider appropriate revisions to the draft guidance before finalizing it. A final guidance on retaliation and related issues would replace the existing Compliance Manual on Retaliation that was issued in 1998.

Last summer, the Commission gathered public input on retaliation issues and best practices from a wide range of witnesses at a June 17, 2015 meeting on "Retaliation in the Workplace:  Causes, Remedies, and Strategies for Prevention."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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