Retaliation is the most frequent Equal Employment Opportunity Commission (EEOC)  charge. The EEOC’s fiscal year is October 1, 2015 to September 30, 2016.  The latest numbers will be available in six to eight weeks.

It is a safe bet that it will top the charts again this year. Retaliation has been the leading charge since 2009. It tied race discrimination in 2008 and has increased its lead ever since.  The EEOC has released   Enforcement Guidance on Retaliation and Related Issues which is likely to increase these charges.

Retaliation is defined as when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces. The EEOC’s anti-retaliation provisions ensure that individuals are free to raise complaints of potential EEO violations or engage in    other EEO activity without employers taking materially adverse actions in response.

The Guidance outlines the three elements required of a retaliation claim:

1. An employee participates in a protected activity, such as a complaint of discrimination.
2. An adverse action is taken against the employee by the employer. It is important to note, a supervisor’s actions are those of the employer.
3. There is a causal connection between the protected activity and the adverse action.

The Guidance broadly defines each of these elements. The employee does not need to be the person making the complaint or opposing the employer’s conduct. The employee may have assisted, testified or participated in the investigation. The complaint needs to be a reasonable, good faith belief that the allegations are, or could become unlawful conduct.

The Guidance expands the definition of   materially adverse action to include any action that might deter a reasonable person from engaging in protected activity. This may include non-work related actions and action against a third party who is closely linked to the complaining employee. The third party may claim retaliation regardless of whether he engaged in the protected activity or has ever been employed by the employer.

Unlawful retaliation is established when a causal connection is established between a materially adverse action and the individual’s protected activity. An employer has two lines of defense; an unawareness of the protected activity and a legitimate unrelated reason such as poor performance for the adverse action.

What all employers should do:

• Have an anti-retaliation policy that clearly explains what retaliation is and that it will be subject to discipline, up to and including termination of employment.
• Include specific examples of retaliation in your anti-retaliation policy.
• Include an easy-to-follow procedure for employees to report concerns and possible occurrences of retaliation.
• Provide training to supervisory staff to ensure their understanding of what conduct is legally actionable.
• Train supervisors to be honest and open and document performance issues.
• Train all employees to understand their rights and responsibilities to maintain a healthy and respectful workplace.