Noting that “retaliation is asserted in nearly 45 percent of all charges and is the most frequently alleged basis of discrimination,” the EEOC has issued its Final Enforcement Guidance on Retaliation and two short publications that summarize the Guidance document.
Retaliation is the most frequently alleged basis of discrimination and the EEOC has found retaliation in 42 to 53 percent of all findings from 2009 to 2015. Retaliation claims arise when an employee believes that the employer has taken what is referred to as a “materially adverse action” (such as failure to promote, demotion, termination) against the employee because he or she engaged in a “protected activity” by, for example, making a complaint about discrimination or participating in an investigation by the EEOC.
The guidance addresses retaliation under each of the statutes enforced by EEOC, including TITLE VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). Topics explained in the new guidance include:
- The scope of employee activity protected by the law.
- Legal analysis to be used to determine if evidence supports a claim of retaliation.
- Remedies available for retaliation.
- Rules against interference with the exercise of rights under the ADA.
- Detailed examples of employer actions that may constitute retaliation.