Retaliation claims are asserted in nearly half of the charges received by the Equal Employment Opportunity Commission (EEOC), according to its Chair, Jenny Yang, and now comprise the most frequently alleged basis of discrimination. On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. The guidance, which replaces the EEOC’s 1998 Compliance Manual section on retaliation, addresses retaliation issues under the federal statutes enforced by the EEOC, which include:

  • Title VII of the Civil Rights Act of 1964;
  • Age Discrimination in Employment Act (ADEA);
  • Americans with Disabilities Act (ADA);
  • Section 501 of the Rehabilitation Act;
  • Equal Pay Act (EPA); and
  • Genetic Information Nondiscrimination Act (GINA).

The guidance goes into detail on these issues:

  • A broad definition of “retaliation,” with specific examples as clarification;
  • Employee activity protected by the law;
  • Legal analysis to be used to determine if evidence supports a claim of retaliation;
  • Available remedies for retaliation; and
  • Detailed examples of employer actions that may constitute retaliation.

While most of the examples used by the EEOC to illustrate its guidance are straightforward, there are a few that may create come confusion. For instance, the guidance explains that “opposing” a perceived unlawful EEOC practice could include “refusing to obey an order reasonably believed to be discriminatory.” Because most employers have policies against insubordination, such refusal by an employee who believes an order to be discriminatory will require clarification or discussion prior to any disciplinary action being taken, in order to avoid the risk of a subsequent retaliation claim.

Besides the guidance, the Commission has issued on-line resource documents, comprising a question-and-answer page that summarizes the guidance, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language.

The guidance also provides, as an additional resource, a link to a document which it says includes “suggestions for reducing incidences of retaliation” – the document is entitled Retaliation – Making it Personal .

While the guidance is not new information, it is a compilation of information with which employers should make themselves familiar. The guidance does not have the force of law, but it is certain to be used by the courts to interpret anti-discrimination statutes and related regulations and therefore, employers should add this document to its training toolbox for managers and supervisors to minimize the risk of retaliation claims related to disciplinary actions or employee complaints.


Photo is from a movie poster for the 1960 United Artists version of The Magnificent Seven. (While it’s a stretch to interpret the Seven’s actions against the marauding bandits as “retaliation,” it’s close enough for me to use this poster.)  In 2013, the film was selected for preservation in the United States National Film Registry by the Library of Congress as being “culturally, historically, or aesthetically significant”.