Employment Law Daily EEOC final retaliation guidance includes tips on ADA interference, ‘promising practices’
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Wednesday, August 31, 2016

EEOC final retaliation guidance includes tips on ADA interference, ‘promising practices’

By Pamela Wolf, J.D. On August 29, the EEOC released its final enforcement guidance on retaliation and related issues, which includes what the Commission identifies as "promising practices," such as written policies, training, and information and debriefing after an employer’s response and investigation on EEO allegations. The final guidance, which provides a wealth of practical information, such as examples of what does and does not amount to retaliation, replaces the EEOC’s 1998 Compliance Manual section on retaliation. It also addresses the separate "interference" provision under the ADA, which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. The Commission at the same time released a companion pair of user-friendly documents that help explain the content of the guidance: a question-and-answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance using non-legal language. The proposed version of the guidance was published earlier this year on January 21. The final guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals representing a wide range of viewpoints. In preparing the final guidance, the EEOC also considered the stakeholder views expressed at the June 17, 2015, Commission Meeting held on this topic. About the guidance. The new guidance addresses retaliation under each of the statutes that the EEOC enforces, including Title VII, the ADEA, Title V of ADA, Section 501 of the Rehab Act, the EPA, and Title II of GINA. Topics 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.
Compliance Manual outdated. Since the 1998 Compliance Manual section on retaliation was published, the Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the number of EEO claims that include retaliation allegations have continued to rise, the EEOC explained. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015. What applicant and employee actions are protected? The small business fact sheet provides a list of actions taken by applicants and employees that are protected from retaliation:
  • taking part in an internal or external investigation of employment discrimination, including harassment;
  • filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • communicating with a supervisor or manager about employment discrimination, including harassment;
  • answering questions during an employer investigation of alleged harassment;
  • refusing to follow orders that would result in discrimination;
  • resisting sexual advances, or intervening to protect others;
  • reporting an instance of harassment to a supervisor;
  • requesting accommodation of a disability or for a religious practice; or
  • asking managers or coworkers about salary information to uncover potentially discriminatory wages.
The EEOC notes that participating in a complaint process is protected from retaliation under all circumstances—and that other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe the issue. ADA interference. In announcing the final guidance, the EEOC flagged the section on interfering with the exercise of ADA rights, including through coercion, threats, or other acts. While many instances of employer threats or coercion might alone be actionable under the ADA as a denial of accommodation, discrimination, or retaliation, because the "interference" provision is broader, it reaches even those instances when conduct does not meet the "materially adverse" standard required for retaliation, the guidance cautions, providing these examples:
  • coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
  • intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
  • threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;
  • issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");
  • interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
  • subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.
The interference provision, however, does not apply to any and all conduct or statements that an individual finds intimidating. As the Commission sees it, the provision only prohibits conduct that "is reasonably likely to interfere with the exercise or enjoyment of ADA rights." Promising practices. The guidance includes a section on "promising practices" that employers may want to consider implementing in order to minimize the risk of retaliation. For example, the guidance suggests that employers "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 to do," which should include:
  • examples of retaliation that managers may not otherwise realize are actionable, including actions that would not be cognizable as discriminatory disparate treatment but are actionable as retaliation because they would likely deter a reasonable person from engaging in protected activity;
  • proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • a clear explanation that retaliation can be subject to discipline, up to and including termination.
The Commission also suggests that employers consider whether policy revisions are necessary to "eliminate punitive formal or informal policies that may deter employees from engaging in protected activity, such as policies that would impose materially adverse actions for inquiring, disclosing, or otherwise discussing wages." While private employers are not obligated to disclose or make wages public, actions that deter or punish employees who make pay inquiries or discuss pay may amount to retaliation under provisions in federal and/or state law. The promising practices section also includes pointers on training; anti-retaliation advice and individualized support for employees, managers, and supervisors; proactive follow-up; and review of employment actions to ensure EEO compliance. What can managers do? For additional information, the guidance provides a link to an article written by EEOC staff for the summer 2015 edition of The Federal Manager that includes many insights and suggestions equally applicable to private-sector managers. The article, Retaliation—Making it Personal, acknowledges that it may be difficult for a manager not to take EEO allegations personally. However, because a negative change in behavior toward an employee following an EEO allegation can be perceived as retaliatory, the article suggests that managers take the following actions to prevent retaliation from occurring:
  • Avoid publicly discussing the allegation.
  • Do not share information about the EEO activity with any other managers or subordinates.
  • Be mindful not to isolate the employee.
  • Avoid reactive behavior such as denying the employee information/equipment/benefits provided to others performing similar duties.
  • Do not interfere with the EEO process.
  • Provide clear and accurate information to the EEO staff, EEO Investigator, or Judge.
  • Do not threaten the employee, witnesses, or anyone else involved in the processing of a complaint.
"Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination," said EEOC Chair Jenny R. Yang. "The examples and promising practices included in the guidance are aimed at assisting all employers [to] reduce the likelihood of retaliation. The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights."

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