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The EEOC is not easing into the New Year. With the EEOC’s January announcement of new proposed enforcement guidance on retaliation and a proposed rule on annual pay reporting, the agency has set a rapid pace for 2016 out of the gate and employers must be prepared to keep up… or fall behind.

Proposed enforcement guidance on retaliation

While the volume of retaliation claims has steadily increased and now represents close to half of all EEOC charges filed, the EEOC last issued guidance on the topic in 1998. To address this evolving area, on January 21, 2016, the EEOC issued draft enforcement guidance on retaliation and related issues.

The EEOC’s proposed guidance defines retaliation, outlines the EEO laws (and provisions) that prohibit retaliation, identifies the elements of retaliation claims, summarizes case law, and provides examples of both lawful and unlawful conduct.

Key for employers seeking insight into how the EEOC handles retaliation claims is the agency’s expanded definition of “protected activity” and examples of “adverse actions” giving rise to retaliation-based claims. The EEOC notes, for example, that threatening reassignment, removing supervisory responsibilities, and “taking any other action that might well deter reasonable individuals from engaging in protected activity” are all adverse acts. This third item should certainly give employers pause. As a general catch-all, it’s hard for employers to quantify and is open to broad interpretation by EEOC investigators.

The guidance also provides “examples of best practices for employers to utilize in an effort to minimize the likelihood of retaliation violations.”

  • Establish a written anti-retaliation policy with reporting procedures; 
  • Train all employees on the policy; 
  • Improve practices and responses to retaliation complaints;
  • Proactively follow-up with relevant players during pending disputes; 
  • Review proposed adverse employment actions before implementing decisions.

The EEOC’s “best practices” are essentially a compliance roadmap and wise employers should take heed of this advice by reviewing their own practices.

While the EEOC’s enforcement guidance does not carry the same force of law as federal regulations, it does provide important insight into factors the EEOC will consider in investigating retaliation charges. The draft guidance is available on the federal website.

Proposed changes to EEO-1 reporting

Finishing the month off with a bang, on January 29, 2016, the EEOC announced proposed changes to EEO-1 reporting that will require employers to include W-2 pay data by race, ethnicity, and sex on the annual report. Although the EEOC has downplayed the effort required to compile this information, these obligations will increase the annual reporting burden on employers by more than a minimal amount.

Currently, all employers with 100 or more employees must file an annual report on the race, ethnicity, sex, of their workforce by job category on an EEO-1 form. The EEOC’s proposed changes will require employers to provide aggregated data on employee pay and hours worked, broken down into pay bands by the race, ethnicity, and sex categories.

This new requirement follows years of efforts by both the EEOC and the OFCCP to develop a tool that would require employers to submit pay data on employees nationwide, so the agencies can target investigations to address the gender “pay gap.” The EEOC and OFCCP would jointly have access to the pay data for enforcement purposes.

Employers have 60 days to submit comments on the proposal with the proposed change to take effect for the EEO-1 report due September 30, 2017.

Ahead of this new obligation, employers can prepare by reviewing pay data and identifying possible pay disparities to ensure that valid reasons exist and are well documented.

The EEOC is in the final year of its aggressive Strategic Enforcement Plan and, possibly, in the last year of a highly supportive administration. With this in mind, employers should watch for an increased level of EEOC activity in the form of policy changes, new guidance, and proposed regulations.

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