Caution: Some Employee Conduct is Protected

Fire an employee for the wrong reason — or in the wrong situation — and the employee could claim retaliation and file a lawsuit.

Several activities by employees are off-limits to retaliatory actions such as firing or disciplinary action.  Any retaliation by the employer could spell potential legal trouble, such as a wrongful termination lawsuit.

Here are three areas of protected employee conduct:

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EEOC Guidance on Retaliation

The Equal Employment Opportunity Commission (EEOC) has recently published updated enforcemesealnt guidance on retaliation. This is the first time that the guidance has been updated since 1998. The 70 page guidance provides court interpretation and examples to help determine what constitutes illegal retaliation.

Each of the EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

Retaliation charges are the most popular of all charges received by the EEOC. In fiscal year 2015, the EEOC reports that 44.5% of all charges received alleged retaliation.

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