The U.S. Equal Employment Opportunity Commission (EEOC) has published proposed major revisions to its nearly 30-year-old enforcement guidance on workplace retaliation issues under the major laws the agency enforces, and is giving interested parties until February 24 to submit public comments.
The 76-page “Enforcement Guidance on Retaliation and Related Issues” describes in detail the circumstances under which a workplace retaliation claim can arise, and instructs EEOC enforcement staff on how such claims should be evaluated and resolved. The revised guidance would replace the agency’s 1998 Compliance Manual Section on Retaliation.
Not surprisingly, the revised guidance would interpret anti-retaliation laws expansively to, among other things:
- Interpret “opposition” conduct to include “non-verbal” acts of resistance;
- Extend “participation” conduct to encompass internal company complaints, in addition to external EEOC charges and lawsuits;
- Explicitly reject the “manager rule” endorsed by several courts, which restricts retaliation coverage to those whose jobs do not involve EEO or HR compliance;
- Treat retaliation and “interference” under the Americans with Disabilities Act (ADA) essentially as interchangeable;
- Reiterate the EEOC’s view that “protected activity” includes the making of a request for disability or religious accommodations; and
- Impose strict liability for retaliation by “supervisors and others” to whom the employer has delegated responsibility to make tangible employment decisions.