- On September 12, 2016
Threatening to terminate, reprimanding, or merely just warning an employee could be grounds for a retaliatory discharge lawsuit against your company. You may be found to have retaliated against your employee without even realizing you’ve done so.
On August 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) released its first new Enforcement Guidance on Retaliation and Related Issues in nearly 18 years. Since its last guidance on the issue, employers experienced a 119% increase in the number of retaliation charges. In 2015 alone, nearly 40,000 retaliation charges were filed against employers. The new Enforcement Guidance covers all types of retaliation claims governed by the EEOC, including Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act. When employers think about what might constitute retaliation, acts such as suspension, termination, reduction in pay, or demotion likely come to mind. While these actions could be considered retaliatory, the EEOC continues to broaden its view as to what constitutes a “materially adverse action.” Pursuant to the new Enforcement Guidelines, other types of adverse actions may now include such things as work-related threats, warnings, reprimands, transfers, and negative or lowered evaluations.
To prepare for the likely increase in number of retaliation claims, employers should consider implementing some of the “Promising Practices” set forth in the Enforcement Guidance. Among other things, the EEOC recommends employers: 1) implement a written anti-retaliation policy with examples; 2) conduct mandatory training for managers, supervisors, and employees on the written policy; 3) conduct mandatory training on discrimination, harassment, and retaliation for all employees on a regular basis; 4) include an anti-retaliation policy in your employee handbook; and 5) require decision-makers to identify their reasons for taking actions of consequence (e.g., discipline) and ensure clear documentation of the employer’s legitimate, non-retaliatory reasons for taking the adverse action.
The employment lawyers at Kelleher & Buckley, LLC are prepared and ready to assist in implementing these Promising Practices. For more information, please immediately contact Andrew Kelleher, David Buckley, or another one of Kelleher & Buckley, LLC’s 23 attorneys at (847) 382-9130.