What is the most likely EEOC charge your company will face?

The U.S. Equal Employment Opportunity Commission (“EEOC”) just released their Fiscal 2015 report on enforcement and litigation data.  Nearly 90,000 new charges were filed by employees complaining of workplace discrimination and seeking enforcement action by the EEOC.

While discrimination claims and enforcement actions continue in areas of race, gender, age, and disability, the single most frequent charge raised is “retaliation,” representing 25% of charges filed. Because multiple charges can be made in a single complaint, retaliation often accompanies allegations of discrimination based on other factors. As a result, 44% of all EEOC charges filed include a retaliation claim.

The frequency of charges filed with the EEOC certainly informs their enforcement efforts and focus, and not surprisingly the EEOC’s first order of business for 2016 is proposing new enforcement guidelines for retaliation.

Does your company have a written non-retaliation policy? Do your managers and supervisors understand what it is and know how to avoid making a bad situation worse with retaliation?

The EEOC considers actionable retaliation claim as having three elements:

(1) protected activity: “participation” in EEO activity or “opposition” by the individual to discrimination;
(2) adverse action taken by the employer; and
(3) causal connection between the protected activity and the adverse action.

For example, an employee complains that he or she is being discriminated against in violation of the Americans with Disabilities Act (“ADA”). Management is tired of his or her “whining” and gives the employee a poor performance score for “effective communication” in an annual review, followed by a below average pay increase. That might be all it takes to state a claim and put the company in the position of an expensive effort to defend in an investigation and enforcement effort. Note:  it doesn’t matter if the employee was wrong about the discrimination complained of–even if there was no ADA violation in this example, the employee could still bring a retaliation claim. Raising discrimination complaints in good faith in the workplace is protected activity by law whether the employee is correct or not on the law.

Be careful not to read the EEOC’s guidance too narrowly. The EEOC restricts its guidance to areas of the agency’s own jurisdiction for enforcement, which includes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 505 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act (GINA).  But there are many more state and federal laws outside the EEOC’s jurisdiction that also can form a legal basis for retaliation claims by employees.  Examples include firing employees for:  (i) discussing unionization during their own time in violation of the National Labor Relations Act; (ii) reporting suspected violation of workplace safety laws toOSHA;  (iii) reporting suspected violations of the federal securities laws enforced by the Securities and Exchange Commission; or (iv) filing a complaint or answering the questions of any state agency in California.

So don’t let your company make a bad situation worse by allowing retaliation against employees for any lawfully protected activity. Have a written policy in place, train your managers and supervisors, and carefully review the basis for any adverse actions to make sure the company can document that the actual reasons for the actions are legitimate and not discriminatory or retaliatory.