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Workplace Retaliation

As an HR person, your plate is full. When an employee reports being treated unfairly or badly, it can be stressful. You may focus on solving the problem or protecting the organization, and forget to protect that employee from feeling mistreated for reporting the problem in the first place. Let’s look at what workplace retaliation is and how you should watch for it in your workplace.

What Is Retaliation in the Workplace?

Retaliation is any action taken (whether real or just perceived) against someone because they brought up a complaint, concern, or problem.

For example, if an employee reports harassment or other negative behavior by a coworker, that coworker may react with further bullying. Or the employee may fear subtle punishment from the organization itself.

An employee taking the (important) step to share these concerns must be immediately protected from negative repercussions, either from the company or other employees.

Why Preventing Retaliation Is So Important

There are two major reasons it is important to prevent retaliation in your workplace:

  • To avoid lawsuits or claims against your company by a person who experienced retaliation for having reported something to HR or leadership.
  • To maintain and preserve a culture where employees trust HR and leadership and feel safe to share legitimate concerns and problems.

It is important to keep in mind that fear of retaliation is a huge deterrent for people when considering whether or not to share feedback, suggestions or complaints with the company.

When Is Retaliation Considered Illegal?

The Equal Opportunity Employment Commission lists the following instances when it is unlawful to retaliate against employees. When an employee is involved in these actions, it is even more important to protect the employee, document that protection, and prevent retaliation or the appearance of retaliation.

(link: https://www.eeoc.gov/facts-about-retaliation )

  • 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.

How to Protect Your Company from Formal Retaliation Charges

There are three main avenues to protecting your company from retaliation charges, all closely related: empowering employees to speak up; preventing retaliation when a concern is voiced; and responding appropriately when a retaliation charge is made.

1. Empower People to Speak Up

The more employees are willing to speak up when they are uncomfortable, the better. In most cases, it’s a sign of a culture where employees trust HR and  leadership to resolve concerns.

Major problems can arise in company cultures where concerns or problems fester unspoken. Suffering silently can cause employees to leave the company entirely and create an unhealthy work climate.

The way to build this muscle as an organization—whether large or small—is to demonstrate that you (the company) will listen. Prove that when something is shared, it’s taken seriously and acted on. Following up on concerns voiced by employees is an important way to build a culture of trust.

2. Responding to a Complaint in a Way That Prevents Retaliation

Any internal complaint of inappropriate behavior means taking steps to prevent retaliation to the complainant (the person who reports offensive behavior).

Step 1: As Stated Above, Listen.

Whether in HR or a leadership position, if someone is bringing you a problem or concern, listen closely to the nature of their concern and document the meeting. It is not your responsibility to assess the validity or magnitude of their complaint, and doing so can cause distrust. Just listen.

Build trust and maintain ongoing communication with the employee who complained. Listen to them to understand their perspective. Allow them your open door and listening ear. This will build trust and allow you to observe the ongoing picture.

There are some situations that create a breeding ground for retaliation complaints. When they occur, be especially vigilant in looking for signs of retaliation.

  • Job changes, manager transfers, etc. by the HR department
  • Changes in assignment, requests to transfer, etc. by team leadership.
  • Harsh treatment, exclusion from meetings or social circles at work, etc. by coworkers and peers.
  • Harsh treatment, bullying, threats, spreading gossip, etc. by an alleged violator.

Step 2: Capture All Relevant Details of the Complaint.

Take notes, using objective language, to ensure no bias is reflected in your note -taking (these notes will be part of the official record for this investigation).

Step 3: Communicate Appropriately with the Manager of the Complainant

If the manager is the subject of the complaint (the person accused of inappropriate behavior), go up one level in the organization. In a small company it may be tricky, especially if the complaint is about the CEO or an executive. Communicate enough information so the manager understands what is going on, and so they know that for the time being nothing can change relative to that person’s employment. Although it is tempting to take immediate action, such as adjusting their manager, title, pay, etc., investigating the situation must come first.

For example, if a female employee reports harassment by a male co-worker, a common first reaction would be to move her to another team. But in fact, that move might negatively impact her.Would her pay decrease? Would she see it as a less desirable job? Might she now feel a limit on her career potential? Could her reputation in the company take a hit? These are all things that could be seen as retaliation rather than support on your part.

Step 4: Decide if it Is Appropriate to Inform the Subject of the Complaint

Inform them in a way that lets them know that the matter is being taken seriously, and they should not do anything as a result. It should be “business as usual as much as possible.

Many recommend keeping the identity of the complainant anonymous from the subject. However, if you share the person’s name with the subject of the complaint/investigation, it notifies the subject that you (a representative of the company) are watching carefully, and essentially helps to protect the complainant. The subject of the complaint is “on notice.”

If you feel that informing the subject would result in extreme behavior or violence, you may consider withholding the complainant’s identity.  In such cases, proceed with caution; evaluate the situation carefully to decide the best course of action for your company and all employees involved.

Step 5: Consider Paid Suspension

In many cases, it is difficult for those involved to continue business as usual. Where possible, in urgent, high-pressure situations, consider some paid time off for the reporting employee (usually accompanying a paid suspension for the subject of the investigation, as mentioned above).

This can alleviate the pressure in the workplace while a proper investigation takes place. Be careful about presenting this option to the complainant. Be sure to truly present it as an option so it doesn’t appear as retaliation in and of itself. Use gentle, understanding language, and help the person understand the benefits of some time away. If trust has been built and fostered, the complainant may be grateful to be allowed to step away from the complicated, emotional workplace for a time and still receive full pay.

These situations are complex and fraught with nuance and delicate variables. It can be very helpful to find someone to consult with. This can be another HR professional, a trusted advisor, or even an HR consultancy firm.

Responding Appropriately to a Charge of Retaliation

Even with your best preventative efforts, there are times when a situation escalates and the complainant feels that they are being unfairly targeted by the company or the subject of the complaint, and they make a charge of retaliation.

It is important for you, as a representative of the company, to remain calm and level-headed. Take time to write your notes, think about the situation, and have appropriate conversations with the employee making the charge, and with other experts from whom you may be seeking advice. Move thoughtfully and deliberately.  Listen intently to the complainant. Take thorough notes.

No two situations will result in the same outcome, but taking these steps will ensure you are able to think clearly about the situation, and will take the best possible steps for your company and its employees.

Questions You’ve Asked Us About Workplace Retaliation

How can I prove that retaliation has occurred?
Sometimes it doesn’t matter if you “prove” whether it happened or not; it can simply be in the perception of that particular employee. If they are feeling victimized or unsupported in their complaint, that may be all they need to file charges.
Is my organization liable for illegal retaliation that occurs?
Yes. Any claim of retaliation is a potential legal liability.
What if the reporting employee also has performance problems? What should I do?
You can and should still hold the complainant accountable for the performance standards of their job. It is important to document performance well and ensure that documentation and any related conversations only focus on performance, not the complaint at hand.
Scott Ence

Scott Ence

After a 15 year career in corporate HR, Scott has moved into an independent consulting role. He advises small to medium sized companies on HR basics, and fundamental principles of leadership and talent management.

Scott has created an online community called “HR Team of One” for those doing HR on their own, to come together and support each other. Join the Facebook group here!

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