Lisa Banks and Carolyn Wheeler Comment on EEOC Retaliation Guidance

During the Equal Employment Opportunity Commission’s (EEOC) 60-day comment period for its Proposed Enforcement Guidance on Retaliation and Related Issues, Katz, Marshall & Banks partner Lisa J. Banks and Senior Counsel Carolyn Wheeler offered their input for the Commission’s consideration.   In a letter sent on February, 23, 2016, Ms. Banks and Ms. Wheeler lauded the Proposed Guidance as a significant step forward for employees and their advocates, particularly with respect to broadening the scope of the opposition clause.  Ms. Banks and Ms. Wheeler also offered suggestions as to how the EEOC could further strengthen the Enforcement Guidance, noting, for example, that the Commission ought to explain its rationale for adopting its strong position in considering participation in internal harassment investigations to be protected activity, as courts have not always embraced that view.  The letter also suggested that the EEOC more prominently feature its important position that an employer’s allegation that it took an adverse action against an employee because that employee falsely complained of harassment would be considered pretextual in the absence of independent evidence corroborating the alleged falsity of the report.

Last year, when the draft Guidance was still in its initial stages, on June 17, 2015, Ms. Banks also provided testimony at an EEOC meeting on “Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention.”  In her remarks, Ms. Banks urged the Commission to update its guidance on retaliation and offered suggestions as to how to strengthen workplace protections, some of which were echoed in the above letter.  As she noted, “While no regulatory guidance could prevent the kinds of injudicious emotional responses that lead to actionable retaliation, the Commission would do a substantial service to the U.S. workforce by revising and updating its guidance on retaliation . . . which it originally drafted in 1998.”

Though guidance documents such as these do not have the force of law, they do provide courts with information regarding how the EEOC (and other enforcing agencies) interpret particular statutes.  Courts generally defer to an agency’s reasonable interpretation of the law and often look to guidance documents to better understand how the agency views the law in question.  When agencies publish proposed guidance documents, it provides interested parties with an opportunity to give input as to how the final guidance document should be constructed.  As Ms. Banks and Ms. Wheeler demonstrated here, they are dedicated to advocating for employee’s rights at every step of the process.