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Law Offices of Elizabeth “Booka” Smith, LLC Blog


September 2, 2016: EEOC Issues Final Guidance on Workplace Retaliation

The U.S. Equal Opportunity Commission (EEOC) recently issued its Final Guidance on Workplace Retaliation. The EEOC’s Guidance (which had not been updated since 1998) aims to bring the EEOC’s stance on retaliation in line with several recent United States Supreme Court decisions in retaliation cases. Workplace retaliation takes place when an employer takes a “materially adverse” action against an employee because the employee has engaged, or may engage in “protected activity.” The EEOC’s Guidance clarifies the government’s stance on what is considered “materially adverse” and also what constitutes “protected activity.” The EEOC Guidance lists the following examples of “protected activity”: taking part in an internal or external investigation of employment discrimination or harassment; filing or being a witness in a charge, complaint, or lawsuit alleging discrimination; communicating with a supervisor or a manager about employment discrimination or harassment; refusing to follow orders that would result in discrimination; resisting sexual advances, or intervening to protect others; reporting an instance of sexual harassment to a supervisor; requesting accommodation of a disability or for a religious practice; or, asking managers or co-workers about salary information to uncover potentially discriminatory wages. The EEOC Guidance further reaffirms that denial of promotion, refusal to hire, denial of job benefits, demotion, discharge, and suspension are all considered “materially adverse” employment actions. The EEOC Guidance also sets out some less obvious examples of “materially adverse” actions, including: reprimanding an employee or giving a performance evaluation that is lower than it should be; transferring an employee to a less desirable position; engaging in verbal or physical abuse; threatening to make or actually making reports to authorities (such as reporting immigration status or contacting the police); increasing scrutiny of the employee’s work performance; spreading false rumors, or treating a family member negatively (for example, cancelling a contract with the employee’s spouse); or, taking action that makes the employee’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his or her work schedule to conflict with family responsibilities). The EEOC’s Guidance on Retaliation is now in line with U.S. case law which has in the recent past broadened employees’ protections against workplace retaliation. This broadening is reflected in the fact that retaliation has become the most common complaint amongst employees, accounting for 44.5% of all Charges the EEOC received in FY2015. The Law Offices of Elizabeth “Booka” Smith, LLC has significant experience representing employees before the EEOC and the Colorado Civil Rights Division (CCRD) in retaliation cases. If you believe you are the victim of illegal workplace retaliation, CONTACT US to schedule an appointment for advice on your best course of action.


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