On January 21, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a draft guidance entitled, “PROPOSED Enforcement Guidance on Retaliation and Related Issues.”  The public has 30 days to provide feedback.

The draft guidance, which would replace the EEOC’s 1998 retaliation manual, follows a string of significant opinions (such as Nassar), and a steady increase in the percentage of EEOC charges alleging unlawful retaliation.  In 2014 alone, over 42% of all EEOC charges included a retaliation claim.

In its draft, the EEOC defines retaliation, outlines the EEO laws (and provisions) that prohibit retaliation, identifies the elements of retaliation claims, summarizes case law, and provides examples of both lawful and unlawful conduct.

The EEOC also offers the following as “examples of best practices for employers to utilize in an effort to minimize the likelihood of retaliation violations.” 

  • Establish written anti-retaliation policies; 
  • Provide training to all employees; 
  • Improve practices and responses to retaliation complaints;
  • Proactively follow-up with relevant players during pending disputes; 
  • Review proposed adverse employment actions before implementing such decisions.

Although the Enforcement Guidance would not carry the same force of law that regulations carry, the EEOC relies on the Enforcement Guidance to direct its employees in charge investigations and related processing such as making cause determinations and considering litigation.  The draft guidance is available online here.