Last week, the Equal Employment Opportunity Commission (EEOC) issued its new "Enforcement Guidance on Retaliation and Related Issues," which supersedes its Compliance Manual Section 8: Retaliation, issued in 1998. New Guidance.
According to the EEOC, the purpose of the new Enforcement Guidance is to set forth the Commission's interpretation of the law of retaliation and related issues, and to advise employers that the EEOC's interpretations may differ from courts' interpretations.
Not surprisingly, the EEOC takes broad views of the definitions of "participation" and "opposition," "materially adverse actions," and causation, and employers should familiarize themselves with these positions, particularly where they differ from those established by case law.
The EEOC reiterates that employers can minimize retaliation claims by implementing comprehensive written policies, training managers and staff, proactively following up with employees and managers during investigations, and scrutinizing employment actions, such as performance reviews, to ensure they are free from unlawful motivations.