An Analysis of the EEOC’s New Retaliation Enforcement Guidance
The Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues in August 2016. Retaliation occurs when an employer punishes an employee for engaging in protected activity, such as complaints of sexual harassment. Employment lawyer and blogger Eric B. Meyer summarizes the key points of retaliation in the workplace in his post “Today’s Special: Retaliation. Everything you’ve ever wanted to know.”
Because the Enforcement Guidance “analyzed how courts have interpreted and applied the law to specific facts,” the EEOC believes it is a good resource for employers “seeking promising practices.” The Enforcement Guidance has its limits, however.
The EEOC makes clear that its guidance only summarizes the law “where the Commission agrees with those interpretations,” which means that its advice does not necessarily reflect a universal application of law. For example, the EEOC (and no fewer than 128 members of Congress) urged the Second Circuit Court of Appeals in an amicus curiae brief to reconsider its ruling that Title VII does not prohibit sexual orientation discrimination or harassment. The EEOC’s interpretations aren’t binding on courts, even though the EEOC settled a sexual orientation discrimination lawsuit under Title VII.
Additionally, the EEOC focuses exclusively on retaliation in the workplace, whereas retaliation can involve other compliance issues, such as corporate fraud or misuse of government funds. This is generally known as “whistleblowing” and concerns the public welfare. This is an important distinction because whistleblowing under the Sarbanes-Oxley Act (SOX), for example, may require a “definite and specific” relation to SOX as opposed to an objectively reasonable belief that SOX is being violated, a distinction the EEOC does not make.
Still, the Enforcement Guidance provides good examples that can help organizations evaluate how they receive and handle complaints of workplace discrimination and harassment. These distinctions are important because employers need to understand, at a minimum, what conduct violates the law, even though compliance doesn’t stop at the law.
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