According to the EEOC, retaliation was once again the most frequently filed charge with the agency in FY 2019, accounting for 53.8% of charges! This may come as a surprise given that the EEOC deals with discrimination in the workplace, but there is an explanation. The EEOC explains that anti-discrimination laws that protect employees from discrimination based on race, sex, or other status also protect individuals who assert their right to freedom from discrimination. It remains common for employers to avoid prosecution for discrimination, due to lack of evidence, only to later be found guilty of retaliating against the individual who filed the discrimination complaint.
The following is a simplified example of what occurs: An employee speaks out against his/her employer’s perceived discriminatory actions, but sufficient evidence is not found to support the claim. Sometime later, the employer retaliates by denying a promotion to the complainant because he/she once accused the alleged perpetrator of discrimination. Since the employee’s right to assert his/her freedom from discrimination is protected by anti-discrimination laws, the employer is charged with retaliation.
To further explain the trend of retaliation against those who call out alleged unlawful discrimination, the EEOC published “Retaliation – Making it Personal.” The article explores the seriousness of this problem along with motivations and organizational risk factors for retaliatory behavior.
Retaliation is a powerful tool for intimidation and revenge. It can be used to intimidate witnesses from calling out discrimination and to silence victims who originally spoke up. The article recognizes the psychological and social factors that would make acting in retaliation the natural response; it is not surprising that some people would want revenge after being accused of misconduct, especially if the allegation was not substantiated. Never-the-less, employers must handle their frustrations carefully.
Employers must understand that while there is temptation to take matters into their own hands, doing so will likely make matters worse. Even when an employer is found innocent of discrimination, he/she can still face legal trouble for retaliating against those involved in the case. The article explains, “The standard for proving a retaliation claim requires showing that the manager’s action might deter a reasonable person from opposing discrimination or participating in the EEOC complaint process.”
It is important to take note of risk factors for retaliation within your organization. The EEOC publication explains how workplace culture predicts retaliatory behavior. Organizations that lack anti-retaliation policies, overemphasize employee rank, are highly competitive, and have an authoritarian management style are at high risk. Additionally, “Organization that do not foster a procedurally just climate also encourage retaliation.” Managers who have a high sense of entitlement, care greatly about status, and have an authoritarian leadership style are increasingly likely to respond to allegations with retaliatory behavior. Notably, employers are more likely to retaliate if allegations are serious and have the potential to end a career.
How can organizations work to prevent acts of retaliation? In addition to an anti-retaliation policy, managers must be trained on how to respond to allegations of discrimination, including how to avoid retaliatory behavior. As the article states, “Often, managers are not prepared for the inevitable conflicts associated with managing human relations within the work setting.” It should not be assumed that managers fully understand how their responses can be categorized as unlawful retaliation. It should also not be assumed that managers will be emotionally and psychologically prepared to handle allegations against themselves. The EEOC explains that when a manager is accused of discrimination, he/she should receive council on how to constructively respond to the allegation as well as the possible consequences of taking justice into one’s own hands. The Commission advises against publicly discussing allegations, singling out the whistleblower, and threatening or denying rights to anyone involved in the case.
Organizations must protect their employees from both discrimination and retaliation. Those at the top must promote a culture of ethical behavior in the workplace. When an employee engages in unethical behavior such as discrimination, appropriate action must be taken immediately. Everyone must be held accountable no matter their status or years of employment. Employees must be encouraged to stand up against discrimination, knowing that they will not face retaliation for concerns expressed in good faith. Promoting the use of an anonymous whistleblower hotline such as Red Flag Reporting demonstrates an organization’s commitment to a discrimination and retaliation free workplace. When employees fear retaliation, they remain silent – negatively impacting the entire organization.