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EEOC issues updated guidance on retaliation - II

In our previous post, we discussed how employers should be aware that the U.S. Equal Opportunity Employment Commission recently released its final Enforcement Guidance on Retaliation and Related Issues, an update 18 years in the making.

In recognition of this momentous occasion and the fact that the EEOC identifies retaliation as the most frequently alleged basis of employment discrimination, we started examining what small business owners need to know about retaliation going forward, an effort we'll continue in today's post. 

While employers cannot punish employees for asserting their rights under federal Equal Employment Opportunity laws or, put more simply, engaging in an EEO activity, this does not mean that they are effectively forbidden from ever taking disciplinary measures.

Indeed, the EEOC indicates that employers are free to discipline and even terminate employees provided their motivation is 1) non-retaliatory and 2) non discriminatory.

By way of example, such actions would be permitted in instances of substandard productivity, poor performance, or even in situations where an employee's actions in opposing discrimination involved conduct that was illegal or otherwise disruptive to the workplace.

It's important for employers to remember, however, that they are walking a fine line. Indeed, when it comes to non-official actions, they are legally prohibited from taking measures against an employee that could be viewed as dissuading others from coming forward with their own complaints about discrimination.

The following non-official actions taken against an employee who participated in an EEO activity could therefore be viewed as retaliatory in nature:

  • Giving the employee an abnormally low performance evaluation
  • Increasing oversight of the employee
  • Taking actions that make the employee's work life more difficult (i.e., changing their work schedule to non-standard hours)
  • Transferring the employee to a less desirable location
  • Reducing the employee's duties

All of this naturally begs the question as to what, if anything, employers can do to reduce their chances of facing a lawsuit alleging retaliation.

According to the EEOC, employers may limit their legal exposure in this area by doing any -- or all -- of the following:

  • Draft the necessary plain-language policies on retaliation, and provide supervisors and managers alike with the necessary training on how to identify and stop retaliation.
  • Institute systems whereby managers and supervisors are required to justify negative employment actions in writing, and have fellow co-workers review these written reports to ensure they are both justifiable and in line with existing practice.
  • Provide employees accused of discrimination or harassment with the necessary support so that they don't compound the problem by engaging in activity that could be perceived, or which is actually, retaliatory.

To learn more about your rights and responsibilities as an employer, consider speaking with an experienced legal professional.

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