Educating Managers and Leaders on Retaliation Risks
Discrimination against employees, including sexual harassment, is all too common in the workplace. And many times, employees who raise the alarm about harassment are targeted for retaliation.
An employer has a moral obligation to protect their employees from harassment and retaliation, but it’s also good business sense. Employees who are free to work without fear or discrimination are more productive and more likely to stick around.
Educating managers about retaliation is a must for any employer. Read on to learn more about the basics, as well as some training ideas for your staff!
If you are looking for employee training on sexual harassment we have a full course available.
Table of Contents
What Is Retaliation for Reporting?
If an employee has filed a report for harassment against a boss or co-worker AND received unfair treatment in response to it, that’s retaliation.
What does this look like in practice? It can mean:
- Unnecessary (or excessive) disciplinary actions
- Reduction in hours, demotion, or being passed over for promotions
- Termination or transferring the employee’s position
- Hostile behavior towards the worker.
When retaliation occurs, it’s not just the affected employee who suffers. Your other workers get the message that if they file a complaint, they’ll be poorly treated, too. Morale suffers, leading to higher turnover, lower productivity, and difficulty hiring.
Retaliation isn’t just directed at employees, either. Those applying for a job with your organization may also have a claim if a job is withheld after they raised a discrimination issue during the application or interview.
For instance, if an applicant in a wheelchair requests the interview be held in an accessible building and the interview is canceled, they may have a claim if providing the accommodation wouldn’t have caused an undue burden.
What Are 3 Examples of Retaliation?
Retaliation can look subtle from the outside. After all, it’s not mistreatment to enforce company policies, require new tasks of an employee, or change schedules for business reasons.
Let’s take the first case: unfairly applying rules. Perhaps your company is relatively lax on start times for one division. Write-ups for tardiness are rare and tend to be given only if people are more than 30 minutes late.
If an employee from that division starts getting written up frequently for being 5-10 minutes late AND they’ve recently filed a harassment claim against someone in the division, that could be retaliation.
Similarly, if an employee who filed a harassment claim is given new unpleasant work tasks that don’t make a lot of business sense, that could be retaliation, too.
Finally, it’s a common retaliatory move to adjust a complainant’s work schedule. That could mean cutting hours, preventing overtime, or being moved to a different shift.
What Does the Law Say about Retaliation?
At the federal level, most retaliation claims fall under Title VII of the 1964 Civil Rights Act. Title VII protects both employees and applicants from discrimination based on sex, color, race, national origin, and religion.
Pregnancy discrimination can also fall under Title VII; it’s considered to be a component of sex. Pregnancy discrimination applies to breastfeeding women, as well as any contraceptive or reproductive decisions.
There are also laws like the American Disabilities Act, the Age Discrimination in Employment Act, and others that can govern workplace retaliation.
Additionally, your state may have additional laws that govern retaliation and additional groups that are protected under anti-discrimination laws.
Workplace and sexual harassment are not crimes, but that doesn’t mean they’re not illegal. A worker will not go to prison for sexual harassment retaliation, either. But your company may be on the civil financial hook to both the harassed worker and the government.
Also, an employee can be retaliated against even if their initial claim of harassment isn’t upheld. As long as the worker filed a complaint in good faith, managers can’t penalize them for filing it.
Finally, you should know that the laws in various countries differ from those in the United States.
What Are the Three Elements of a Retaliation Claim?
Taking a closer look at a retaliation claim can help employers better understand the law. It can also help managers draft policies that prevent retaliation.
Protected Activities
A claim must show that the employee received retaliation for engaging in a protected activity. These can include:
- Making an official discrimination complaint to the Equal Employment Opportunity Commission (EEOC).
- Talking to a supervisor or human resources about harassment or discriminatory behavior.
- Refusing to perform a task reasonably considered to be discriminatory – for example, a female employee may refuse to make coffee if it’s a task that only falls to women in your office.
- Refusing sexual advances.
- Requesting accommodation to perform their job duties (such as a private room for breastfeeding women to express milk).
This list is not exhaustive – look to the EEOC or your lawyer for further guidance on other protected activity. Many employer-side labor lawyers can provide a free consultation on complaints and harassment issues.
Adverse Action
Second, a claim must show that an employee was subject to an adverse or retaliatory action. In addition to the actions discussed earlier in the piece, retaliatory actions can be:
- Creating a hostile work environment (for example, spreading false rumors about a worker or making demeaning comments about their protected status)
- Constructive discharge, or making conditions so unpleasant that the worker decides to leave
- Withholding promotion opportunities, including things like training and additional responsibilities.
Retaliation for reporting sexual harassment, or any other kind of harassment, can be quite subtle. Your human resources department should be empowered to investigate any behavior that looks like retaliation.
Causal Connection
The final part of a retaliation claim is showing a causal connection between making the complaints and receiving adverse action from managers. From the employee side, this is the trickiest part since retaliation can look like normal business.
That doesn’t mean employers should be complacent, though. It’s a good idea to document the business’ reason for a personnel change, like discipline, promotion, or termination. That way, if an investigation or lawsuit occurs, you can show non-retaliatory reasons for a decision.
If an employee does come forward with a sexual harassment complaint (or any other harassment complaint), take it seriously. Making an official complaint is a difficult step for a worker, and they’ve given it a lot of thought. Even if you don’t agree with the complaints, you need to respect them.
Avoiding retaliation should be on a manager’s mind as soon as they get a complaint. Keep a closer look at how their co-workers and supervisors treat them during a discrimination investigation.
What Is Retaliation Training?
Retaliation training helps your managers and supervisors to better understand the harassment laws and is key in avoiding retaliation.
Retaliation is expensive, and it’s not just about the costs of a lawsuit or fine. It teaches workers that the employer punishes those who are reporting discrimination and making complaints. That leads to lower morale.
Lower morale results in lower productivity, more sick days, and higher turnover. Employees, especially the good ones, want to work for an organization that’s committed to opposing discrimination.
Retaliation Training in Your Workplace
Avoiding retaliation in the workplace should be a priority for every manager, which means that retaliation training should be a priority for every employer.
Training in the workplace doesn’t have to be boring – providing staff with training materials can help get your point across in a bold and engaging way. Video courses on sexual harassment and retaliation are a cost-effective, proven way to educate employees and management alike.
