Silver Lining in EEOC’s Continuing Quest to make Employees Untouchable?

May 11, 2016

In January 2016, the EEOC issued its proposed enforcement guidance on retaliation charges filed by employees. The public comment period for the proposed guidance is now closed. If you haven’t gone through it yet, settle in, make yourself comfortable and read the 73-page proposed guidance.

Employers and their management-side attorneys often grumble about the many ways in which the EEOC guidance gets it wrong, such as the suggestion that a termination decision occurring five years after an employee engaged in protected activity could actually be causally connected to support an inference of retaliation.

But could there be a silver lining for employers in the EEOC’s proposed guidance? Perhaps so. That is because if you are still awake by page 68 of the proposed guidance, you will read that the EEOC suggests “Best Practices” for employers to undertake to “help reduce the risk of violations.”

Those best practices include:

  • Maintaining a written anti-retaliation policy complete with “practical guidance on the employer’s expectations”; and
  • A reporting mechanism for employees to voice concerns about discipline.  

The EEOC also suggests employers should:

  • Train employees on the employer’s written anti-retaliation policy; and
  • Investigate all complaints in a timely and professional manner.

If that advice sounds familiar to you, it should, because it is likely the same advice your legal counsel has been giving you for years. Most management-side legal advice is not simply given because it’s a nice thing to do, or even a “best practice.”; rather, advice in this context is often/mostly/always given in order to protect you – the employer – from risk and allow you to take advantage of court-created legal defenses to liability for employment claims.

Ever since the 1998 and 1999 U.S. Supreme Court twin decisions, employers have defended themselves against liability in certain cases alleging discrimination and harassment on the basis of sex, age, national origin, religion and age, by proactively instituting policies, training, investigation and remediation practices.

So does the EEOC’s proposed guidance signal that it is open to extending an employer’s “compliance program defense” to claims of retaliation too? The EEOC will undoubtedly answer “no,” but there is a lot to use from the proposed guidance to argue that it should.

Contributed by Jennifer Stocker, Barnes & Thornburg.

View the on-demand webinar “Retaliation Claims: Protected Rights, Trends, Enforcement Initiatives” with Jennifer J. Stocker.