On November 17, 2021, the EEOC updated its technical guidance on COVID-19 and anti-discrimination with a new anti-retaliation section.
The new section largely restates existing statutory anti-retaliation protections in the context of COVID-19. The guidance provides several examples of COVID-related protected activity, which include filing a charge with the EEOC
For the first time in nearly 20 years, the Equal Employment Opportunity Commission has issued proposed enforcement guidance regarding retaliation claims. According to the EEOC, the revised guidance is necessary in light of several court decisions, including the Supreme Court’s decision in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), holding that retaliation claims under Title VII are subject to a “but-for” (as opposed to a “contributing factor”) causation standard. The EEOC also notes in its 76 page proposal that new guidelines are necessary because the percentage of retaliation charges has nearly doubled since 1998, when the agency last issued guidance regarding retaliation claims.
On January 8, 2013, the U.S. Supreme Court was petitioned to rule on whether employees must file a new or amended charge to pursue an employment retaliation claim arising from an initial Title VII discrimination charge. If the Court grants certiorari, we’re likely to see the resolution of a decade-long circuit split created by the holding in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
According to a recently released report, the EEOC received more retaliation charges in 2012 than in any prior year. And, in 2012, it received more retaliation charges than in any other individual category.
The number of retaliation charges lodged with the EEOC has grown dramatically in the last 15 years. In 1997, 18,198 retaliation claims were received by the EEOC, making up 22.6% of all complaints. In the last five years, the number of retaliation charges received by the EEOC has increased by 10,000.