For the first time since 1998, the Equal Employment Opportunity Commission (EEOC) released proposed guidance earlier this year on how federal employment law applies to retaliation claims. In a nutshell, this new guidance could possibly extend the types of actions taken by federal (and private sector) employers that would constitute illegal retaliation.
Retaliation, which, according to the EEOC, is the most common issue alleged by federal employees, occurs when an employer takes an adverse action against an employee because he or she engaged in a "protected activity." Under current law, "protected activities" have been interpreted to include:
· Filing or participating in a claim of illegal discrimination
· Cooperating or serving as a witness in an EEO investigation
· Taking actions to oppose unlawful discrimination
· Refusing to obey an order or directive that is reasonably believed to be discriminatory
Expansion of "adverse action"
Current law defines "adverse action" as actions that would deter a reasonable person from engaging in a protected activity. The new proposed guidance would broaden what is considered an "adverse action" to include employer actions that do not directly affect working conditions of the employee such as:
· Disparaging the employee to others or the media
· Scrutinizing work or attendance of the employee more closely than others
· Threatening reassignment of the employee
· Giving inaccurate performance reviews or references, even if they are favorable
The bottom line is if this guidance is finalized, it could give federal employees even greater protection against illegal retaliation. As a federal employee, if you are experiencing retaliation, you need an attorney that understands your unique needs. The attorneys at Passman & Kaplan, PC specialize in helping federal employees facing employment issues and can work on your behalf to protect the rights guaranteed to you by law.