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New guidance on retaliation will impact employees and employers

The Equal Employment Opportunity Commission (EEOC), states that retaliation is far and away the most common employment claim for employees in the private and public sectors, making up nearly half of all cases. Recently the EEOC released new guidance on retaliation claims, the first such guidance in years. Understanding how this guidance applies to the workplace is critical for all businesses, as well as employers who face retaliation in the workplace.

What is illegal retaliation?

The EEOC says retaliation takes place when an employer takes a "materially adverse action" against an employee who "has engaged in, or may engage in" protected activity.

Let's drill down a bit. First, what is protected activity? Under the law, protected activity involves "making a charge, testifying, assisting, or participating in any manner" in an EEOC investigation. Therefore, an employee who has any involvement in a discrimination claim is protected under federal law.

In addition, employees who oppose any unlawful practice are protected from retaliation. Opposition is defined broadly, and can include complaining to managers, union representatives or others. Opposition can also mean making public complaints about potentially illegal actions or telling an employer of the intent to file a complaint with the EEOC or another state or federal agency.

What does this mean for employers and employees? Employers should consider a wide scope of activities to be protected under the law. Employees who engage in these activities have substantial protections. With this said, the EEOC states that employees who make bad faith claims, or fail to perform the duties of their job could still be subject to discipline.

What is a materially adverse action?

We have discussed protected activity. The next question becomes, what is a materially adverse action? The EEOC defines this very broadly. Termination, suspension, demotion, threats, poor evaluations could all be considered a materially adverse action, depending on the context. Other potential materially adverse actions include:

  • Making negative comments about an employee on social media
  • Threatening reassignment
  • Taking adverse actions against a close family member

In the new guidance, the EEOC will take a very fact-specific approach as to what constitutes a materially adverse action. What does this mean for employers and employees? If you are an employer and believe that an employee will file a complaint, or if an employee has already brought a complaint, it is important to proceed very carefully. If an employer must take adverse action against an employee, if you are an employee and have engaged in protected activity, it is important to document any potentially adverse actions by your employer.

Any employee facing retaliation in the workplace, as well as employers that are accused of retaliation, need to work with experienced legal counsel at the earliest opportunity. Thatcher Law Firm has a strong record of success representing employers and employees across Maryland and beyond.

Source: EEOC Enforcement Guidance on Retaliation and Related Issues

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