Since the last guidance release in 1998, retaliation claims have doubled. To that end, retaliation claims are currently the most alleged form of discrimination. With the release of the new guidelines, employers face a broader definition of each element of the retaliation claim; thus the increasing momentum of retaliation claims will likely continue.
Employers should find the new guidelines’ effect on the first element – participation in protected activity, most alarming. Under the new guidelines, element one now encompasses not only the “protected activity” language, but it also provides for protection from “opposition activity.” Through the new “opposition activity” language, an employee’s passive inaction to others’ expressed opposition to discriminatory practices is protected. This may become applicable to managers, human resource officers, or other EEO advisors that do not report or discipline their subordinate’s refusal to adhere to a policy or assignment based upon the subordinates’ belief that such policy or assignment violates the discrimination laws.
This inaction or passive action by management can be protected regardless of whether the underlining policy actually violates any discrimination laws. Through the inclusion of inactivity in this broadened definition, employers are even exposed to “anticipatory retaliation” claims. These claims would apply to policies that threaten discipline for engaging in protected activity or that otherwise deters participation in protected activities.
Ultimately, with these new guidelines, it is important to employers to be proactive. Employers should ensure their Employee Handbooks and company policies are in-line with the new guidelines. Additionally, employers should ensure all personnel are properly trained on these new developments. Remember, that there is no specific language that an employee must use to invoke protection, thus all training should include understanding on how to identify when an employee may be invoking protections under federal law. Follow the link for the full update EEOC Enforcement Guide on Retaliation and Related Issues. https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref53
For specific guidance and assistance with any of these changes or other employment law concerns feel free to contact Robert A. Luskin at rluskin@gm-llp.com.
