Did you know that under the U. S. Equal Employment Opportunity Commission, an employee who believes that they have been retaliated against by an employer for complaining against unlawful discrimination in the workplace can file a complaint with the EEOC under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and/or Title II of the Genetic Information Nondiscrimination Act. It is worth noting, this is not an either or situation, meaning, an employee’s claim can cross over the various discrimination laws.

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Employers with at least 15 employees — or 20 employees in age discrimination cases, including labor unions and employment agencies — are covered by EEOC laws. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. A very important point to keep in mind: it’s illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The EEOC laws apply to all types of work-related actions, including hiring, firing, promotions, harassment, training, wages and benefits. To put it all in perspective — and show just how large and widespread this issue is — here are some sobering statistics: charges of retaliation filed with the EEOC accounted for 44.5% of alleged basis of discrimination in FY2015 with more than 39,700 allegations filed and with monetary benefits awarded in the amount of $173.5 million (not including those paid through litigation), according to an EEOC report on litigation statistics: Retaliation-Based Charges FY 1997 - FY 2015. Compare today’s numbers to 1997, when 18,198 allegations were filed and $41.7 million in benefits were awarded. Retaliation complaints continue to be the most frequent form of alleged discrimination filed with the EEOC since 2009.

Final enforcement guidance
It is no wonder then that at the end of August the EEOC issued its final enforcement guidance on retaliation and related issues replacing its 1998 Compliance manual section on retaliation. The update also provides guidance for the “interference” (prohibiting coercion, threats or other acts that interference with exercise of rights) provision under the ADA.

The various topics explained in the new guidance include:

  • The scope of employee activity protected by the law;
  • Legal analysis to be used to determine if evidence supports a claim of retaliation;
  • Remedies available for retaliation;
  • Rules against interference with the exercise of rights under the ADA;
  • Detailed examples of employer actions that may constitute retaliation.

The EEOC also released The Small Business Fact Sheet: Retaliation and Related Issues and a set of FAQs, Questions and Answers: Enforcement Guidance on Retaliation and Related Issues for clarification on main topic points for employers.

As a trusted benefit adviser, why should you be concerned about this update in the EEOC Compliance Manual? This is another opportunity to be in front of your clients and help guide them with their employment practices. Good business practices help attract and retain employees during these competitive times. Creating a culture free from employment discrimination can also create a motivated, stress free workforce leading to reduced benefit claims, reduced absenteeism, and turnover, which can allow for business growth.

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What can your employers do now to ensure that their organization is proactively compliant with EEOC laws?

1) Make sure the Employee Handbook contains their EEOC policy statement and includes a process for an employee to file allegations of a complaint of workplace discrimination.

2) Train employees and supervisors on lawful and unlawful employment practices, including retaliatory behavior.

3) Take all complaints of discrimination seriously and ensure that a prompt and thorough investigation is conducted.

Employers should also make sure that their performance management process is documented and non-discriminately administered. If an employer needs to take corrective performance action — up to and including termination of employment — against any employee who has filed a complaint of discrimination, it is advised that they seek guidance from their Employment Law attorney before taking any action.

Lastly, discrimination in the workplace can be avoided by having a culture that promotes diversity, making employment decisions based upon performance, and maintains professionalism in all forms of communication.

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