How to Prevent Retaliation in the Workplace: An HR’s Guide
Retaliation in the workplace comes in many forms, including false allegations, unfair scrutiny, blacklisting, unwarranted discipline, and wrongful termination of employees. Not only can workplace retaliation contribute to a toxic work environment, it can also lead to lawsuits. We will explore the definition of retaliation in the workplace, some examples and possible signs, and how you can prevent workplace retaliation at your organization.
What is retaliation in the workplace?
Retaliation in the workplace is when an employee with power exerts their power over another employee with less power with the intent of negatively impacting that employee’s career or professional advancement in the organization, or even how that person is perceived by leadership. In other words, there is usually a power differential when workplace retaliation happens.
This is usually because employees either did something the other person(s) did not approve or did not do something they wanted.
Retaliation can be blatant or subtle. Therefore, seemingly legitimate actions can be used to retaliate against an employee. Proving retaliation requires a thorough investigation and evidence.
Retaliation in the workplace is illegal. Under the EEO laws, it is prohibited to punish job candidates or employees “for asserting their rights to be free from employment discrimination, including harassment.” EEOC further explains that asserting these rights is referred to as “protected activity,” and defines multiple activities it is unlawful to retaliate against job applicants or employees for:
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- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
- communicating with a supervisor or manager about employment discrimination, including harassment
- answering questions during an employer investigation of alleged harassment
- refusing to follow orders that would result in discrimination.
- resisting sexual advances or intervening to protect others.
- requesting accommodation of a disability or for a religious practice
- asking managers or co-workers about salary information to uncover potentially discriminatory wages.
The FY 2020 data show that retaliation remained the most frequently cited claim in charges filed with the agency. It accounted for a staggering 55.8 percent of all charges filed.
A primary role of HR is to prevent retaliation by partnering with leadership to create a safe working environment for all employees. HR must educate leadership and managers about key legislation on protected classes and protected activities. Furthermore, the department must develop and update policies that mirror the laws and hold all employees accountable to the same standards.
In the event there are claims of retaliation, it is HR’s role to thoroughly investigate the claims and assess the findings, and make a determination that upholds the law, aligns with the organization’s code of conduct, and reinforces HR’s commitment to be objective, fair and to foster a culture of psychological safety.
Workplace retaliation examples
As we’ve already mentioned, retaliation in the workplace has many forms. Let’s have a look at a couple of examples.
Sexual advances rejection retaliation
Retaliation is about taking revenge in the workplace. It is as old as the beginning of time and we can even find an example of it in the Bible.
Joseph, (not Jesus’ father), is a character in the Bible. In the book of Genesis, there is the account of Joseph being sexually harassed by the wife of the Potiphar. Joseph was young, attractive, and had been promoted to serve in the Potiphar’s house. He was the head servant.
Potiphar’s wife noticed him and began begging him to ‘lay with her’. He kept resisting until she grabbed him one day. He ran away, leaving her with his cloak. The saying, ‘hell has no fury like a woman scorned’ may have its origins in this story. Incensed by the ultimate rejection, Potiphar’s wife lied to her husband, claiming Joseph had tried to rape her. She used his cloak as evidence. Potiphar did not investigate, or maybe he did but felt threatened by Joseph. Either way, Joseph was charged and imprisoned.
Retaliation or impact of COVID-19?
In our fictional example, Analia applied for a role for which she was qualified, had strong experience, performance and interviewed well for the role. This would be a promotion, and most employees who knew about her application anticipated she would get the position.
Ricardo also applied for the role. He was less qualified, had less relevant experience, and his performance had been mediocre. There was a general sentiment that Ricardo was not ready for the role. However, Ricardo was given the job.
Analia, confused and disappointed, remembered she had participated in an investigation when a complaint was filed against a director a few months before. There was an investigation, and the director was fired. Analia also realized since the director’s firing, she was being excluded from meetings. What’s more, she was removed from project teams on which she had previously worked.
When she asked about it, she was told it was because of the organizational restructuring in progress, and her job would be better defined when the restructuring was complete.
However, before that happened, Covid-19 hit and negatively impacted the organization. Analia’s job was eliminated, and she was laid off soon after the pandemic hit.
Was Analia laid off because she was being retaliated against for participating in the investigation? Or was her position legitimately eliminated because of the negative impact of the pandemic? Should Analia submit a retaliation claim to the EEOC? If yes, should it be for being denied the position she was qualified for or for being laid off?
It is critical that HR takes claims of retaliation seriously and thoroughly and fairly investigates these. Retaliation claims can be complicated.
Race discrimination & protected activity retaliation
In a recent EEOC case and settlement, African American employees who were directly employed by Cardinal Health or assigned to work for Cardinal Health by AppleOne experienced ongoing and unwelcome racial harassment.
According to the EEOC, neither company took immediate and corrective action regarding the harassment when employees complained. This allowed the hostile work environment to become even worse.
Employees who complained were subject to retaliation, disciplined, and terminated. Other employees felt that quitting was their only choice.
Global health care services and products company Cardinal Health will pay $1.45 million of compensation to resolve a racial harassment and retaliation discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). Cardinal Health, along with California-based staffing agency AppleOne, will also implement sweeping injunctive relief as part of the settlement.
This is an example of how extremely costly retaliation is to organizations.
REMEMBER: Retaliation is about revenge (human nature), retaliation claims can be complicated, and retaliation (if proven) is very costly.
What are signs of retaliation in the workplace?
When leading organizations and managing people, legitimate decisions will not always please all employees and may even be disadvantageous to some. The critical thing for leaders and managers to consider is whether these decisions can be considered disparate treatment or have adverse impact on protected classes. They also need to ensure the decisions are not a form of retaliation against employees for engaging in protected activity.
Many of the signs of retaliation listed below are sometimes necessary to successfully lead a business or team. Therefore, a sign of retaliation is just that, a sign.
Until there is a thorough investigation and evidence of retaliation, employees should not assume that every negative experience at work is retaliation or discriminatory. If they feel strongly about it, they should submit a formal complaint to HR.
Alternatively, HR should not dismiss claims of retaliation because there are legitimate business decisions that negatively impact employees. The organization must thoroughly investigate and objectively adjudicate all workplace retaliation cases.
Possible signs of retaliation are:
- Hostility – Hostility in the workplace is never acceptable. However, it does happen. When it does, there can be several reasons, one of them being retaliation. According to the EEOC, hostility in the workplace is discriminatory in nature, pervasive, severe, and (obviously) unwanted. Hostility may be:
- Reprimanding the employee or giving a performance evaluation that is lower than it should be;
- Shaming the employee, especially publicly;
- Excluding the employee from projects or meetings that impact their portfolio of work or to which they should have some influence;
- Engaging in emotional, verbal, or physical abuse;
- Unfair and intimidating scrutiny;
- Spreading false rumors, slandering, or defaming the employee;
- Making the person’s work more difficult (for example, punishing an employee by changing their work schedule to conflict with family or other known commitments).
- Demotion – This is a legitimate tool for leaders and managers. Demotion may be necessary when an employee is not performing well. However, if an employee is demoted without a justifiable reason, it may be retaliation. Your organization should have a policy that communicates when demotions can happen.
- Salary reduction or perks elimination – This may be accompanied by demotion. It also may happen when an organization is facing financially challenging times or restructuring. However, salary reduction must be justifiable, and there should be an accompanying policy that describes when a salary reduction may be necessary. If there is no justifiable reason or a consistently applied policy, retaliation may be the reason.
- Reassignment – Reassignment in itself can be harmless. However, when an employee is reassigned to another team or another location for engaging in protected activity, it is retaliation, regardless of whether the role and salary remain the same. It is less about the decision and more about why the decision was made.
- Disciplinary procedures – Disciplinary procedures are also legitimate tools leaders need to use to ensure productivity, quality of services and products, protect the organization, and foster the right culture. However, when applied, the discipline must match the offense of the employee. If a verbal warning suffices, a written warning placed on the employee’s file may be interpreted as retaliation. If a written warning is the next logical action to take, demotion may be perceived as retaliation.
- Termination – This can be the ultimate form of retaliation. ‘Employment-at-will’ permits employers to end the employment relationship with or without cause. However, employers still need to be responsible for executing this agreement to protect the organization from potential litigation for wrongful termination.
- Post-employment retaliation – Retaliation against a former employee can give rise to a False Claims Act (FCA) Retaliation Claim. According to The National Law Review, “employers throughout the United States should know that negative statements about a former employee may potentially give rise to costly litigation and potential liability under various theories, such as whistleblower retaliation under the FCA (in the Sixth Circuit and potentially in any state outside of the Tenth Circuit), retaliation under Title VII of the Civil Rights Act, defamation, and intentional interference with prospective business relationships. As a result, employers should train managers (up to and including executives) and human resources professionals on proper communications about a former employee’s performance and separation and should consult with counsel about the content of such communications in high-risk situations.”
How to prevent retaliation in the workplace
The best way to fight against workplace retaliation at your organization is to prevent it. There are several things you as an HR practitioner can do.
1. Develop written policies
Develop a written anti-retaliation policy and guidelines on how retaliation should be reported and investigated.
The policy and guidelines must be accessible to your employees. For instance, you can publish them on the company’s intranet, wiki, or in the employee handbook.
2. Provide training
Train all employees on these policies and guidelines.
Your employees need to know what workplace retaliation is and why it may happen. They also have to understand that not every negative or unpleasant situation is a form of retaliation or workplace discrimination.
Leadership and managers need comprehensive training on recognizing and preventing retaliation in the workplace, legal requirements and repercussions, and handling employee complaints. Communicate to the managers that they need to report all disciplinary meetings to HR.
HR employees need to know how to recognize and manage retaliation claims. They should also be very clear on the procedures to report and investigate these claims.
3. Design an investigation process for workplace retaliation claims
Your workplace retaliation investigation process should outline specific steps that your organization and the HR department consistently follow when investigating retaliation claims. That way, you can ensure that you don’t miss out on any step in the process.
4. Document and file everything
This regards details of meetings, achievements, recognition, and warnings. Unfortunately, there is a tendency to document more of the negative than the positive in many organizations. The positive actions, statements, and achievements are just as important, especially in determining if claims of retaliation are true.
If an employee who has been performing well and has been recognized for doing so is suddenly being defamed and demoted, it may be because of retaliation. That’s why consistently documenting your employees’ performance through a structured performance management process is essential.
Pay attention to discrepancies. For example, a certain employee might be receiving poor performance reviews and negative evaluations from a certain manager while another manager rates them as a top performer.
5. Handle accommodation requests according to ADA and Title VII Civil Rights Act 1964 requirements
Your organization should have a Reasonable Accommodation policy and guidelines that explain the process for accommodation. The guidelines should outline in which instances accommodation may or may not be denied.
You have to make sure that there is no violation of the law when handling accommodation requests. Consider consulting this with an employment lawyer.
6. Ensure confidentiality
When an employee has a meeting with HR, make sure the information they share stays confidential. Reassure the employee that they will not be retaliated against because of their complaint. Your organization should also offer whistleblower protection.
7. Empower employees to come forward
Leaders and HR have to build a culture of trust if you want your employees to speak up when they feel they’re being retaliated against, or when they witness retaliation.
Also, did you know that employees often fail to report witnessing misconduct because they fear retaliation? Nurturing trust within your organization will not only empower employees to speak up but also contribute to building a more ethical culture.
8. Empower HR to do the right thing
Claims of retaliation are usually against employees in power and of influence. Therefore, HR needs to be objective and work closely with the legal department and employment attorneys.
The HR department must have some autonomy to make decisions when retaliation or discrimination claims are made and proven to be true.
HR must be business partners but should not become puppets or pawns of the leadership. If HR becomes a pawn or puppet, employees lose trust, feel unsafe and usually resort to leaving the organization and/or complaining to the EEOC. Leaders must create a culture where HR also feels empowered and free to consistently do the right thing according to the employment laws and the organization’s policies.
A final word
Educating your workforce about workplace retaliation, having clear and transparent policies in place, and creating a culture of trust help you prevent workplace retaliation claims and ensure your employees are treated fairly under all circumstances.
HR, often acting as a mediator between employees and leadership, need to feel empowered and supported to do the right thing to protect the organization and to protect the employees.