HR INSIGHTS
EEOC AND OSHA FOCUS ON RETALIATION AND WHISTLEBLOWING
T
Richard I. Lehr Lehr Middlebrooks Vreeland & Thompson, P.C.
he federal workplace related agencies don’t necessarily coordinate their efforts, but some- times it feels that way. Such is the case with the Equal Employment Opportunity Commission’s (EEOC) January 21, 2016, release of Proposed Enforcement Guidance on Retaliation following on the heels of OSHA’s November 2015 Proposed Guidance on Protecting Whistleblowers. OSHA administers the anti-retaliation/whistleblower provisions of 22 different statutes, including the Occupational Safety and Health Act, Sarbanes-Ox- ley, and the Affordable Care Act. The EEOC’s current enforcement guidance re- garding retaliation was issued in 1998. Since then, the number of retaliation charges filed with the Commission has doubled, reaching a point where approximately 43 percent of all discrimination charges allege retaliation. Approximately five years ago, retaliation became the single most likely al- leged discrimination claim filed before the agency. EEOC Chair Jenny R. Yang stated that “ensuring that employees are free to come forward to report violations of our employment discrimination laws is the cornerstone for effective enforcement. If employees face retaliation for filing a charge, it undermines the protections of our federal Civil Rights laws. The Commission’s requests for public input on this proposed enforcement guidance will promote transparency. It will also strengthen EEOC’s ability to help employers prevent retal- iation and to help employees understand their rights.”
The EEOC has invited public comment on its proposed 73 pages of enforcement guidance. The proposed guidance stakes out familiar, and pro-employee, ground for the Agency on hot issues such as permitting HR managers and other supervisors to claim retaliation protection when they receive or investigate complaints for others and treating complaints of sexual orientation discrimination or harassment as protected based on the EEOC’s July 2015 guidance that it would interpret Title VII’s prohibition against discrimina- tion “because of sex” as including sexual orienta- tion and gender identity. It also alerts its readers to employee protections for violating pay secrecy
34 THE LANDSCAPE PROFESSIONAL > MARCH/APRIL 2016
policies or instructions under laws and regulations other than those the EEOC enforces (Executive Order 11246 and the NLRA). Courts generally give some deference to the EEOC’s guidance, thus we will follow this process carefully and review with our readers’ employer rights once the Commis- sion processes the comments and issues its final guidance. OSHA’s proposed guidance included five core principles to prevent retaliation: 1) Establish an executive team commitment against retaliation. 2) Build a culture of no retaliation. 3) Establish a process where employees can report retaliation. 4) Conduct organization wide training about re- taliation and prohibited behavior. 5) Monitor the program. Two debates have arisen regarding the pro- posed OSHA guidance. The first area of debate concerns whether OSHA should encourage em- ployers to put in place procedures that encourage employees to report complaints internally. The National Whistleblowers Center, an advocacy organization for whistleblowers, alleged, “Until there is a sufficient attitudinal change towards whistleblowers within the corporate community, internal programs cannot, at this time, be trusted to protect employees. Any actions taken by the U.S. Department of Labor to provide guidance on effective internal programs, regardless of inten- tion, may be misunderstood by whistleblowers or abused by corporate employers.” The National Whistleblowers Center challenged OSHA to estab- lish a whistleblowing/no retaliation process that does not depend on reporting the behavior to the company. According to the National Whistleblow- ers Center, employers exploit internal reporting programs by persuading courts to deny whis- tleblower protection for employees who make only internal reports.
The second area of debate concerns OSHA’s recommendation to eliminate safety-related incentive programs, such as reward and recognition for the number of days without a work-related accident or injury. OSHA claims that approximately two-thirds of all job-related accidents or injuries are unreported, and that
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