EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues
On August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance, among other things, addresses the "interference" provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights.
The EEOC also issued two resource documents to accompany the new guidance, a question-and-answer publication that summarizes the guidance document, and a Small Business Fact Sheet that summarizes the major points in the guidance in plain language.
EEOC Chair Jenny R. Yang states "retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination." Allegations of retaliation topped race discrimination in 2009. In 2015, retaliation accounted for 44.5 percent of all charges received by EEOC. In the federal sector, retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.
The final Enforcement Guidance on Retaliation and Related Issues addresses retaliation under Title VII of the Civil Rights Act of 1964, 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.