
We have previously posted
on some of the “best practices” reflected in the draft EEOC guidance, as well
as other retaliation prevention tips. If your company has not already taken
these measures to heart and adopted them, it should stay tuned for the final
EEOC guidance and use this as an opportunity to proactively adopt
anti-retaliation prevention steps. Among other things, an anti-retaliation
policy is critical, and the EEOC draft guidance encourages employers to include
examples of retaliation “that managers may not otherwise realize are
actionable, including actions that would not be cognizable as discriminatory
disparate treatment but are actionable as retaliation because they would deter
a reasonable person from engaging in protected activity.” Including examples
can help employees better understand an employer’s policies, but employers
should also remember that what makes conduct actionable or unlawful is heavily
dependent on the facts and specifics of a situation. As such, any policy
examples should be followed by language that makes clear that, whether or not a
particular action is retaliatory, will depend on the specific facts and
circumstances and whether an adverse action was taken because of an employee’s
legally protected activity or for other legitimate, lawful reasons.
The public
comment period for the EEOC’s draft guidance ends February 24, 2016. There is
no set date for the final, published version, but you can look for future
updates from us.
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