Dive Brief:

• Employers may not retaliate against applicants, current employees or former workers who asserted their rights under any laws enforced by the U.S. Equal Employment Opportunity Commission, the agency told employers in a Nov. 17 update.
• The pandemic created new situations for retaliation to occur, EEOC Chair Charlotte A. Burrows said in a press release announcing the update. The guidance aims to help employers understand how EEO laws "balance workers' rights to speak up" with employers' need to maintain safe workplaces.
• According to Burrows, charges alleging retaliation have increased every year for the last two decades. Enforcing EEO laws' retaliation provisions has been and will likely remain a priority for the EEOC. The agency announced Nov. 10 it will partner with the U.S. Department of Labor and the National Labor Relations Board "to raise awareness about retaliation issues when workers exercise their protected labor rights."

Dive Insight:

Employers must tread carefully once an employee has spoken out about perceived workplace discrimination, attorneys say. Federal EEO laws prohibit them from retaliating against workers and — as EEOC highlighted in its update — applicants and former employees for their protected activity. 

Protected activity can take many forms, and the previous year and a half produced many pandemic-specific scenarios that created potential for retaliation. EEOC included several examples. Employers may not, for instance, retaliate against employees who report being harassed for religious objection to vaccination. EEO laws also bar employers from punishing a worker who asks for continued telework as a disability accommodation.

Retaliation has many faces, too. It may come as denial of promotion or benefits, warnings or poor evaluations, threats or termination. For applicants, retaliation can look like a non-hire. EEOC pointed out that retaliation can include an action with "no tangible effect on employment, or even an action that takes place only outside of work."

There are limits to EEOC's definition of retaliation. Retaliation generally does not include petty slights, small annoyances or insignificant punishments, the agency said. EEOC also highlighted that a worker's protected activity does not insulate the individual from discipline. "Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline," the agency said.