I ended my January 21 “employment law predictions” post by writing, “One thing I can count on as these ‘Years of Change’ continue, [I] expect something unexpected.” The EEOC made that prediction come true the same day when it published for comment a wholesale revision of its policy guidance on retaliation claims under federal civil rights statutes. Read the EEOC press release and the Guidance here.
The comprehensive 73-page draft is an impressive work product, summarizing hundreds of federal cases in 222 footnotes and explanatory text, offering 32 examples of permitted and prohibited conduct, and outlining fifteen “best practices” for manufacturers. Along the way, the EEOC’s Guidance expands the reach of the anti-retaliation provisions of the statutes the agency enforces. While not binding on litigants or the courts, the Guidance likely will be broadly cited for its expansive interpretation of the law.
Among its more significant provisions, the Guidance:
- Reminds manufacturers that internal complaints of poor or unfair treatment by employees, even if vaguely worded, may nevertheless constitute protected activity.
- Cautions that even if an employee makes a complaint in bad faith or for an improper purpose, a manufacturer acts at its peril if it takes action against that employee.
- Suggests that an employee engages in protected activity by making public statements against a manufacturer’s practices, merely accompanying a co-worker to human resources so the co-worker can lodge a complaint, or refusing to follow instructions or orders which are reasonably believed to be unlawful.
- Advises manufacturers that any conduct which discourages employees from exercising their rights (regardless of its tangible impact on the employee) could be found to be unlawful, such as making disparaging comments about the employee, refusing to invite the employee to attend a company lunch or providing a negative employment reference.
- Cautions employees that their unlawful acts would not be protected regardless of the motivation for those acts.
Among the list of “best practices,” the EEOC Guidance urges manufacturers to adopt comprehensive “anti-retaliation” written policies (akin to the now common anti-harassment policies and complaint procedures), train managers and supervisors on the manufacturer’s policies, create an avenue to support and encourage employee complaints, and proactively communicate with employees and others whenever an EEO charge or investigation is launched to aggressively remind individuals of the manufacturer’s policies against retaliation.
While reasonable people may legitimately argue over the scope of the EEOC’s recommendations and legal interpretations, the Guidance clearly signals the agency’s intent to make “retaliation” a “hot topic” for 2016 and beyond.