#HR and #floridacontractors, be aware that on August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued final Enforcement Guidance on retaliation and related issues. Federal EEO laws prohibit employers from punishing job applicants or employees for asserting their rights under the discrimination and harassment laws. Asserting EEO rights is called “protected activity.” Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy that discourages the exercise of EEO rights could itself be unlawful. Small Business Fact Sheet on Retaliation.
Protected actions can take many forms, ranging from participating in an EEO complaint process to reasonably opposing discrimination. For example, it is unlawful to retaliate against applicants or employees for (among other things) taking part in an internal or external investigation of employment discrimination, including harassment; filing or being a witness in a charge, complaint, or lawsuit alleging discrimination; or for communicating with a supervisor or manager about employment discrimination, including harassment; asking managers or co-workers about salary information to uncover potentially discriminatory wages; refusing to hire an applicant because they had a previous EEO complaint against a prior employer.
What is retaliation? Retaliation includes any employer action that is “materially adverse”, which is more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension and discharge. This means any action that might deter a reasonable person from engaging in protected activity. Retaliation can be an employer action that is work-related, or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity. For instance – taking action against a family member or friend. Questions and Answers: Enforcement Guidance on Retaliation.
What type of evidence can an employer use to defend an employment action, and refute an allegation of retaliation?
- Employer not aware of the protected activity
- Legitimate non-retaliatory motive such as: poor performance, inadequate qualification for hire, misconduct or reduction in force
- Similarly situated employees who did not engage in protected activity treated the same
- The adverse action would have occurred anyway
New Guidance – What is interference with disability rights under the ADA? Under the ADA’s interference provision, it is unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights. Some employer acts may be both retaliation and interference, or may overlap with unlawful denial of accommodation. For instance, issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”).
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