EEOC Issues New Retaliation Guidance

For the first time since 1998, the Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on retaliation. Retaliation claims have been a growth industry over the last 18 years. Back in 1998 retaliation claims constituted 24 percent of all EEOC claims, behind both race and sex charges. Since then, however, retaliation has become the most common type of claim filed with the EEOC, leapfrogging to 45 percent of all EEOC charges filed in 2015.

The basics of a retaliation claim have not changed: retaliation occurs when an employer takes a materially adverse action against an employee because the employee engaged in protected activity. But the EEOC has taken the opportunity to offer detailed definitions and examples of each of these key terms. Not surprisingly, those definitions and examples are broad, oftentimes broader than the definitions used by courts in interpreting the laws.