Employee Protections & Workplace Harassment

Workplace retaliation occurs when an employer punishes an employee for engaging in legally protected activity. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. However, retaliation can also be subtler, as explained by the legal website, NOLO.

Federal Protections

Federal law protects employees from retaliation when employees complain -- either internally or to an outside body like the Equal Employment Opportunity Commission (EEOC)  -- about workplace discrimination or harassment. That's true even if the claim turns out to be unfounded, as long as it was made in good faith.

The law also protects employees who cooperate in EEOC investigations or serve as witnesses in EEOC investigations or litigation. A recent Supreme Court case confirms that an employee's participation as a witness in an internal investigation is protected, too. And various federal laws protect other types of "whistleblowers" too, such as those who complain of unsafe working conditions.

Sometimes, it's hard to tell whether your employer is retaliating against you. For example, if you complain about your supervisor's harassing conduct, his or her attitude and demeanor may change. But if the change means he acts more professionally towards you, that isn't retaliation even if he isn't as friendly as he once was. Only changes that have an adverse effect on your employment are retaliatory.

On the other hand, if something clearly negative happens shortly after you make a complaint -- like firing or demotion -- you'll have good reason to be suspicious. And remember, not every retaliatory act is obvious or necessarily means your job is threatened. It may come in the form of an unexpected and unfair poor performance review, the boss micromanaging everything you do, or sudden exclusion from staff meetings on a project you've been working on.

Actions to Take if Retaliated Against

NOLO suggests that if you suspect your employer is retaliating against you, first talk to your supervisor or a human resources representative about the reasons for these negative acts. It's fair to ask specific questions. Your employer may have a perfectly reasonable explanation -- you've been moved to the day shift because there's an opening, and that's what you'd said you always wanted, or your poor performance review may be based on documented problems you'd been told of previously.

If your employer can't give you a legitimate explanation, voice your concern that you are being retaliated against. No doubt your employer will deny it -- and in truth, employers can retaliate without realizing it. You should point out that the negative action took place only after you complained, and ask that it stop immediately. If the employer isn't willing to admit its wrongdoing or correct the problem, you may have to take your concerns to the EEOC or your state's fair employment agency.

If you suspect retaliation and your employer won't correct the problem, you will need to show a link between your complaint (or other behavior that you believe triggered the retaliation), and the employer's retaliatory behavior. The more evidence you have in support of your claim, the better.

To do this, document the allegedly retaliatory behavior. Also, keep track of historical information prior to when you made your complaint. For example, if your boss claims your performance is poor after you make a complaint, be sure to dig up any email messages or other documents showing that your boss was pleased with your work performance before the complaint.

Ethics & Compliance Programs

The Ethics & Compliance Institute’s (ECI’s) latest National Business Ethics Survey reveals that culture, leadership and values-based ethics and compliance programs make a big difference in increasing employee reporting of workplace misconduct free from retaliation. The research shows that in organizations with effective programs, employee reporting of wrongdoing increases by 61 percent. These values-based program efforts also decrease retaliation by as much as 93 percent. One way to minimize this risk of non-compliance is to create an environment where employees feel that they can alert leadership when problems arise without punishment through retaliation.

High rates of reporting give organizations a chance to identify and root out systemic problems. Low rates of retaliation tend to boost reporting because workers feel it is safe to report what they see. In combination, high reporting levels and low retaliation rates can create a virtuous cycle that reduces future misconduct and organizational risk. Organizations that manage their own ethics and compliance risks are able to do so through effective ethics and compliance programs and the development of strong ethics cultures.

Ethical Considerations

Accountability is a key ingredient in those organizations; where fairness is perceived and violators at all levels are held accountable, the likelihood of retaliation against reporters is lessened. When organizations do not take on these efforts, retaliation in particular becomes a risk unto itself.

Workplace Retaliation threatens the entire organization. The person to whom it is directed feels abandoned by his or her superior; let down by the organization; and, oftentimes, out there alone with no one to turn to. Years ago it was a shameful act that smacked of not being a team player and disloyal to the organization. Today, it’s considered a justifiable act when retaliation can be proven and the motivation for the act is a moral one, such as righting a wrong.

Blog posted by Steven Mintz, aka Ethics Sage, on September 7, 2016. Dr. Mintz is Professor Emeritus from Cal Poly San Luis Obispo. He also blogs at www.ethicssage.com.