On August 25, 2016, the Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on Retaliation. As such, the newly published guidance should be a “must read” for HR professionals and companies (right, just want you needed going into the Labor Day Weekend). Next, HR should be prepared to follow up with a meaningful assessment of how the company’s current anti-retaliation policies concerning federal or Michigan anti-discrimination employment statutes compare to the EEOC Guidance.
Employment Retaliation Landscape – Changed and More Expansive
The EEOC notes that its new Enforcement Guidance on Retaliation was necessary because since its 1998 Retaliation Guidance the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation. Additionally, charges alleging retaliation has doubled since 1998. In fact, retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.
The newly issues Guidance is needed in light of these changes, as well as because of how broadly the opposition clause of Title VII has been interpreted. The Supreme Court explained this definition as follows:
‘[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the activity.’
Recommended Best Practices
Again, HR professionals should read the Enforcement Guidance in full. It provides many helpful examples of what is prohibited, as well as discussions about non-obvious examples of employment scenarios that may give rise to retaliation violations. However, here are a few recommended best practices discussed in the Guidance for employers to reduce the risk of retaliation violations.
- Written Employer Policies – Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not do.
- Training – Employers should consider training that focus on: (i) training all managers, supervisors, and employees on the company’s written anti-retaliation policy; (ii) top management should set the tone by making it clear that retaliation is not tolerated, (iii) tailor training to address any specific deficits in employment compliance knowledge that have arisen in the workplace; and (iv) train management and human resources staff regarding how to be responsive and proactive when employees do raise concerns about potential EEO violations.
- Anti-Retaliation Advice and Support for Employees and Managers – In response to a complaint and investigation, employer’s should provide statements and information to all parties and witnesses regarding the company’s anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it. Further, managers should be informed about
- Review Employment Actions – Before making any adverse employment decision against an employee who has filed a charge of discrimination with the EEOC or participated in an employment discrimination proceeding, companies should consult with experienced HR professionals or their employment law specialist. This caution is necessary to ensure the proposed employment action is based on legitimate non-discriminatory, non-retaliatory reasons, i.e., it will not expose the employer to further liability for retaliation. In this regard, it is critical to accurately identify the legitimate, nondiscriminatory reasons for taking any adverse employment action and ensuring to appropriately document those reasons.
There is no single best approach suitable for every workplace. And each circumstance of discrimination or retaliation will involve its own set of distinctive facts. As such, employers should first consult with experienced employment law attorneys before implementing these recommendations.
After Action Assessments
Further, employers should consider conducting an assessment after a discrimination complaint is resolved. We routinely meet with our employment law clients to share our assessments leading up to and the handling of the circumstances giving rise to the discrimination complaint. The purpose of our after action assessment is to provide the “good, the bad, and the ugly” in terms of feedback so as to prevent repeat mistakes and otherwise improve the client’s business.
For more information about complying with federal and Michigan employment laws, contact employment attorney Jason Shinn. Mr. Shinn routinely works with companies to investigate workplace issues, navigate the patchwork of state and federal antidiscrimination laws with respect to compliance, and, if necessary, litigates these issues in federal and Michigan courts.