The E.E.O.C. reports that retaliation is the most frequently raised claim in federal sector cases and the most common finding in such cases. Beyond the confines of the federal sector, “[o]ne 2003 study found that 75% of employees who spoke out against workplace mistreatment faced some form of retaliation.” See EEOC Select Task Force on the Study of Harassment in the Workplace Report (2016) (citing Lilia M. Cortina & Vicki J. Magley, Raising Voice, Risking Retaliation: Events Following Interpersonal Mistreatment in the Workplace, 8:4 J. Occupational Health Psychol. 247, 255 (2003)).
The prevalence of retaliation arises, at least in part, from the disconnect between the law and human nature. The law essentially demands that managers treat those who accuse them of misconduct the same as before, usually regardless of the ultimate merits of the accusation. As a paper by EEOC experts Romella Janene El Kharzazi, Ph.D., Mxolisi Siwatu, Ph.D., and Dexter R. Brooks points out,
[t]he process of retaliation begins with a perceived offense (e.g., initiating a discrimination claim). If those accused sincerely believe that they have done nothing wrong, or if they believe that their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation. In this regard, retaliation is a coping mechanism – a way of alleviating the psychological discomfort associated with perceived injustice.
They further note that “[s]everal factors ultimately affect whether a manager will engage in retaliation. These include the manager’s psychological traits, perceptions of the organizational culture, and organizational opportunities.” We have seen these factors at work in employment contexts. They have also played out in coverage of accusations against prominent figures in media, business, and politics, where the response by those accused have been, on one end of the spectrum, occasional (and more recent) openness to the process to, on the other end, aggressive retaliation.
Without detailing each of the factors impacting the response to an accusation, it is clear that the potential for retaliation is real and its causes are complex. Yet, many policies we come across in our work include only a limited, general prohibition against retaliation. Moreover, in specific instances, a proactive and immediate triaging to minimize the chances of retaliation is still relatively rare. We therefore recommend that employers consider implementing more robust anti-retaliation policies and training, and having mechanisms in place to jump into action when a complaint is raised.
Considering the disconnect between the law’s requirement and certain human reactions to being accused of misconduct, an anti-retaliation policy should be written in plain English and describe in some detail what is prohibited and why. For instance, it is important to make clear that retaliation is prohibited regardless of the underlying merits of the complaint. A policy should provide examples that demonstrate the various forms retaliation can take, avoiding managers falsely assuming that “retaliation” equals “revenge” in the form of aggressive or malicious conduct. Explaining the purpose of anti-retaliation protections can also help bridge the divide between the law and initial human reactions.
Training on the retaliation policy must be as regular and in-depth as training on underlying claims of discrimination. Those in the legal and human resources fields are well-versed on what is considered retaliation, while company managers and leaders have less exposure to the subtleties of retaliation and require a more wholesome overview to protect the employer. Consider adding management-specific role-playing on what retaliation can look like and tools managers can use to reduce the likelihood of a retaliation claim.
When a complaint is filed, employers should not rest on this beefed-up policy, prior training, or a mere reminder of both. Rather, concrete anti-retaliation steps and deliberate planning should be implemented to minimize the risk of retaliation in specific instances. These steps can vary depending on circumstances and workplaces, but there are principles that should govern proactive anti-retaliation responses. They include ensuring an open, positive, and welcoming response to the raising of a complaint; minimizing who knows about complaints or the identities of both complainants and witnesses; having somebody outside the reporting structure assess the structure and approach to interim management decisions; and providing both complainants and managers with ongoing resources and counsel during the process.
ILG encourages a review of anti-retaliation policies and the development of triage toolkits for when complaints arise. We’re always available to discuss ways policies and responses can be crafted in specific workplaces and situations or to refer you or your clients to helpful resources.