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EEOC Plans To Issue New Guidance On Retaliation

Volume 15, Issue 4
March 21, 2016

The EEOC has announced that it plans to issue revised and updated guidance on retaliation claims to replace its 1998 Compliance Manual on Retaliation. The EEOC explains that retaliation charges have "roughly doubled" since 1998, "making retaliation the most frequently alleged type of violation raised with EEOC." Because "ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement," the EEOC has updated and revised its prior guidance to address new court decisions and to help employers prevent retaliation and employees better understand their rights.

While guidance from the EEOC can be helpful, the proposed guidance on retaliation seeks to expand the concept of retaliation in several ways beyond the boundaries set forth by the federal courts. The EEOC has received concerns and comments from many employer groups advocating for a more nuanced and careful approach to retaliation. While the final guidance will not binding on courts, investigators will use it to determine whether a charge of discrimination is meritorious.

As we await the final guidance, the best course of action for employers is to ensure that retaliation is thoroughly addressed in your policies and training sessions, and that you are guarding against it on all levels of operation. Clearly, retaliation charges are a priority for the EEOC, and its investigators may soon be armed with a guidance that improperly skews the analysis in the employees' favor.

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