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EEOC issues updated guidance on retaliation

The U.S. Equal Opportunity Employment Commission made headlines last week after releasing its final Enforcement Guidance on Retaliation and Related Issues, an extremely important document designed to replace the agency's longstanding 1998 Compliance Manual section on retaliation.

While small business owners can perhaps be forgiven for failing to note this development or even reading through the dense document, it's nevertheless important for them not to overlook the matter entirely. Indeed, the EEOC cites retaliation as the most frequently alleged basis of employment discrimination.

In recognition of this reality, today's post will start taking a closer look at what small business owners should understand about retaliation in 2016 onward.

From Title VII of the Civil Rights Act of 1964 and the Equal Pay Act to the Age Discrimination in Employment Act and Title V of the Americans with Disabilities Act, retaliation is expressly prohibited by all federal Equal Employment Opportunity laws.

What this means is that employers cannot take actions designed to punish employees for asserting their EEO rights or, in other words, engaging in a "protected activity."

As to what constitutes a protected activity, some examples offered by the EEOC include:

  • Participating in external or internal investigations into allegations of employment discrimination or harassment
  • Filing a lawsuit or complaint alleging employment discrimination or harassment, or otherwise serving as a witness in either action
  • Refusing to abide by orders that would result in employment discrimination
  • Speaking with a manager or supervisor about possible employment discrimination or harassment
  • Asking for accommodations for a religious practice or disability

It's important to understand that the prohibition against retaliation extends not just to current employees, but also job applicants and even former employees.

By way of example, an employer is not permitted to reject the possibility of hiring a job applicant who previously filed an EEO-based complaint at another workplace, or provide a harmful and inaccurate reference for a former employee who previously filed an EEO-based complaint against them.

We'll continue discussing this in our next post, examining the circumstances in which employers can punish their employees and steps they can take to protect themselves.

In the meantime, consider speaking with an experienced legal professional to learn more about your rights and responsibilities as an employer. 

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