Last month, the Equal Employment Opportunity Commission (EEOC) issued a final enforcement guidance on retaliation claims under the various federal civil rights laws administered by the agency. The guidance will replace outdated sections of the EEOC’s compliance manual used by investigators to determine violations during administrative investigations. The changes to the manual were prompted by a number of U.S. Supreme Court and other federal decisions that have significantly expanded the scope of statutory anti-retaliation provisions.

While the guidance does not contain any significant deviations from these decisions, it reflects the EEOC’s position with regard to elements of a retaliation claim. For example, the guidance reviews the types of employer reactions to employee complaints that can be deemed retaliatory, and also expands the definition of protected persons to co-workers, former employees, family members and other individuals subjected to retaliatory action.

The guidance contains some recommended best practices for employers. If an employer takes disciplinary action against an employee who has complained of discrimination based on performance or conduct, the EEOC suggests an independent review of the basis for such decision. The guidance also recommends that employers consistently notify managers of their anti-retaliation obligations in every instance involving a complaint of discrimination.

Almost half of all EEOC charges of discrimination now include an retaliation component. In many situations, a meritless underlying discrimination claim can be given new life based on the reaction of management to the initial accusation. Human resource professionals should pay particular attention to preventing retaliation in every circumstance involving a claim of violation of EEO policies.