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EEOC issues updated guidance on retaliation and ADA interference

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new updated guidance on laws that prohibit retaliation against workers who engage in protected activities such as opposing unlawful discrimination or participating in a discrimination investigation.  The EEOC issued its previous guidance in 1998 and since that time the U.S. Supreme Court has decided seven cases in which the court addressed the anti-retaliation laws that the EEOC enforces.  So, an update of the guidance was certainly warranted.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The new guidance contains many helpful illustrative examples of protected activities.  Of course, there are many types of protected activities not illustrated but the EEOC’s guidance cover some common types.  Some examples of protected activity covered in the guidance include:  telling your employer that you witnessed acts of sexual harassment that a co-worker complained about; resisting sexual advances; refusing to comply with your employer’s instruction to engage in unlawful discrimination; and raising questions about potential pay discrimination.  Because these activities are protected, an employer may not retaliate against you for doing them.

The EEOC’s guidance also discusses provisions in the Americans with Disabilities Act (ADA) which protect workers from “interference” with their ADA rights.  Some examples of interference covered in the guidance include:  threatening an employee with adverse consequences if advises a disabled co-worker of his right to a reasonable accommodation under the ADA; warning a disabled employee not to make a request for a reasonable accommodation; and asking a disabled employee to withdraw a formal request for a reasonable accommodation so that they can address the issue informally.  Again, there are other types of unlawful interference with ADA rights not covered in the guidance but the guidance covers some common issues.

The EEOC’s guidance contains some “promising practices” which are tips for employers on things they can do to reduce the risk of unlawful retaliation.  Some of the promising practices include training that employers should provide to supervisors and managers.  For example, training on “how to be responsive and proactive when employees do raise concerns about potential EEO violations.”  People would be surprised how often supervisors mishandle complaints when they receive them because many supervisors just want the issue to go away instead of dealing with it.  This type of training could help ensure that supervisors and managers properly deal with discrimination complaints.