EEOC Acting Chair Andrea Lucas recently issued a memorandum entitled “Restoring and Protecting the Presumption of Innocence in the EEO Complaint Process,” stating that
- an employer may not punish an employee who in good faith files a complaint or otherwise participates in the EEO process and
- that there is “never a presumption of guilt against someone accused of unlawful discrimination.”
The memorandum’s stated purpose is to ensure “true neutrality for both accuser and accused” and suggests that an accused individual’s participation into a company investigation of the accused’s own conduct constitutes protected conduct for which there may be no retaliation; in other words, that employers must tread carefully in suspending or disciplining employees pending an investigation into their conduct, as accused individuals may be more likely to make retaliation allegations.
Although the memorandum is not binding law and does not have to be given deference since the Supreme Court overturned the Chevron decision in 2024, the memorandum indicates that the EEOC may be more likely to support “majority” plaintiffs who have been accused of discrimination or harassment. Employers should always contact counsel should an employee complain of discrimination or harassment in the workplace.
Read the full memorandum here: EEOC_Memo_-_Restoring_and_Protecting_the_Presumption_of_Innocence_in_the_EEO_Complaint_Process.pdf