On January 21, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued proposed enforcement guidance concerning retaliation claims. This guidance is intended to replace the 1998 Compliance Manual on Retaliation, and, not surprisingly, the guidance takes a broader view than many of the cases that have been decided since then.

The guidance makes clear that the anti-retaliation provisions that the EEOC enforces apply to prospective, current, and former employees. The guidance provides examples of prohibited conduct, including negative evaluations, refusing to provide references, advising prospective employers of the former employee’s discrimination claims, as well as the standard claims of demotion or discharge. Retaliation against third parties somehow linked to the employee is also prohibited.

Pursuant to the anti-retaliation statutes, protected activity may be established by demonstrating that an individual either “participated” in equal employment opportunity activity, or otherwise “opposed” discrimination. The proposed guidance attempts to limit the extent in which the individual must be acting in good faith. According to the guidance, “opposition” may have a good faith and reasonable belief component, while “participation” does not require good faith, truthfulness, or reasonableness. The EEOC is considering more and more complaints to be in the “participation” category, for example, by treating them not as opposition, but as participation in an internal EEO procedure. The guidance also provides examples of best practices that employers should follow to minimize the likelihood of retaliation violations. These best practices include:

  1. Establishing written policies against retaliation;
  2. Ensuring that all employees are properly trained;
  3. Providing anti-retaliation advice and support for employees, managers, and supervisors in order to improve practices and responses to retaliation complaints;
  4. Proactively following up with the complaining employees during any pending dispute; and
  5. Reviewing adverse employment actions with Human Resources and/or company counsel before implementing them.

The comment period ends on February 24, 2016. Because retaliation claims constitute the single most alleged category of violation of all EEOC claims, this proposed guidance will have important ramifications, and Frantz Ward LLP will continue monitoring if and when these proposed changes are implemented.