Retaliation in the Workplace

Retaliation is the most common claim filed with the Equal Employment Opportunity Commission (EEOC). It is a frequent behavior in the workplace that is not well understood by many companies and their employees. Workplace retaliation can take various forms, from subtle actions to overt discrimination, and can significantly impact worker rights and job satisfaction. Understanding what constitutes retaliation, its legal implications, and how to prevent it is vital for maintaining a fair and productive work environment.

Retaliation is “adverse actions” taken against an employee in response to that employee engaging in a “protected activity” in the workplace.

What are protected activities?

Protected activities are legally safeguarded actions that workers can take as part of their right to a discrimination-free workplace, including protection from harassment. Workplace discrimination occurs when an individual is treated unfairly or differently based on personal characteristics such as race, gender, or disability.

Examples of protected activities can include:

• Filing or being a witness in a discrimination complaint or investigation.
• Telling a supervisor or manager about discrimination the employee has experienced or witnessed.

• Answering questions during an investigation of alleged discrimination.
• Refusing to do something that would result in discrimination.
• Resisting sexual advances.
• Intervening to protect others who are experiencing discrimination.
• Requesting accommodations for an identity characteristic, like a disability or religious practice.
• Asking managers or coworkers about salary information or work hours.

Retaliation occurs when an employer takes adverse action against an employee for engaging in legally protected activities. Recognizing and preventing retaliation is crucial for maintaining a fair and productive work environment.

What are adverse actions?

Adverse actions are measures that discourage or prevent individuals from engaging in the previously listed protected activities. Both employers and coworkers can perpetrate these actions.

Examples of adverse actions by employers may include:

• Reprimanding the employee.
• Reducing the employee’s work hours or pay.
• Giving a performance evaluation lower than it should be.
• Transferring the employee to a less desirable position or work schedule.
• Engaging in verbal or physical abuse of the employee.
• Threatening or making reports to law enforcement or immigration control.
• Increasing scrutiny of the employee’s work and/or actions.

Note: For an action to be considered “adverse,” it must be negative treatment in response to a protected activity. This means that some of the prior examples of adverse actions will not always be retaliation. 

Examples of adverse actions by coworkers are:

• Spreading false rumors about the employee.
• Ignoring the employee or leaving them out of workplace activities.

This chart below shows an example of retaliation and non-retaliation.

Retaliation

Employee is given a poor performance review that is lower than it should be because she resisted a sexual advance (e.g., a protected activity).

Non-Retaliation

Employee is given a poor performance review that is lower than it should be because she failed to attend a non-mandatory team-building event.

Retaliation happens in the workplace for a variety of reasons. The most common is that someone is “seeking revenge” for what they perceive to be unfair treatment.

The perception of unfair treatment typically occurs when someone is accused of engaging in a discriminatory behavior, and they either believe that they’ve done nothing wrong or that their behavior was justified. When this happens, the accused person attempts to get things “back to normal” by doing something about the unfair treatment.

Other factors that can contribute to retaliation include:

• The accused person has a sense of entitlement.
• The accused person places a lot of importance on their “status” within groups.
• The accused person believes the workplace is not fair and can’t be depended on to address issues.
• The accusation against the person is serious and could negatively impact their job and/or future career.
• Workplace processes reward competition or create a scarcity of something like funding, so people are pitted against one another.

Retaliation has negative impacts on both the employee who experiences or witnesses it and the entire workplace.

Within the workplace, retaliation can lead to a chilling effect for reporting problematic behaviors and establish a culture of fear and mistrust. It can also negatively impact employee morale, collaboration, and productivity; increase turnover; cost the company money to settle lawsuits; and damage the organization’s reputation.

Individuals who are subjected to or witness retaliation can experience stress, anxiety, depression, decreased self-esteem and sense of belonging, lost personal and/or professional relationships, feelings of powerlessness, and physical health problems.

Federal laws with sections addressing retaliation include:

• Age Discrimination in Employment Act (ADEA)
• Americans with Disabilities Act (ADA)

• Employee Polygraph Protection Act

• Equal Pay Act (EPA)
• Fair Labor Standards Act (FLSA)
• Family and Medical Leave Act (FMLA)
• Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
• Title VII of the Civil Rights Act of 1964

Whistleblowers are protected from retaliation under various laws, such as:

• Dodd-Frank Wall Street Reform and Consumer Protection Act
• Occupational Safety and Health Act (OSH Act)
• Sarbanes-Oxley Act (SOX)
• Whistleblower Protection Act (WPA)

The WPA prohibits retaliation against most executive branch employees when they report things like abuses of authority, gross waste of funds, and substantial and specific dangers to public health or safety. The SOX and Dodd-Frank Act prohibit retaliation against people who report firms or individuals that have possibly violated federal securities laws by committing things such as securities, shareholder, or bank fraud.

Multiple federal laws across various sectors safeguard employees from workplace retaliation. These protections extend from civil rights and labor standards to whistleblower protection and union activities, ensuring broad coverage for workers exercising their rights.

The National Labor Relations Act (overseen by the National Labor Relations Board, NLRB) protects the right of employees to come together, with or without a union, to improve their wages and working conditions. It is common for employees to experience retaliation when attempting to establish or join a union.

Filing a complaint about retaliation can be done with an employer; the EEOC, DOL, Securities Exchange Commission, or NLRB; or a state employment or labor agency.

An organization can prevent retaliation in 4 main ways.

1. Ensure a prohibition against retaliation is embedded in workplace policy.

Many employees are not aware of their right to engage in protected activities and that retaliation is against the law. Being explicit within workplace policy about having zero tolerance for retaliation helps employees know behavioral expectations, their rights, and where and how to report retaliation. The content of the policy should be available in multiple locations, like the employee handbook, breakrooms, and the company’s online file storage system.

2. Protect employees who file retaliation claims, including whistleblowers.

When an employee reports retaliation, their identity and other information should be protected and kept as confidential as possible. This includes when reports are made to supervisors or managers and company leaders, as well as Human Resources (HR) personnel. Employees should be reminded of the organization’s anti-retaliation policy when they file the claim and asked whether they have concerns about further retaliation.

3. Ensure all disciplinary actions and conversations are documented.

Preventing retaliation claims begins with the proper documentation of any disciplinary actions and conversations. A lack of documentation opens the door to ambiguity and that can cause any disciplinary actions that are taken to be seen as discriminatory and/or retaliatory. To be the most effective, documentation should begin long before a person’s behavior has reached the point where they are subject to termination. All workplaces should have documentation practices that are consistently followed by supervisors, managers, company leaders, and HR.

4. Provide retaliation training to all employees as part of your anti-discrimination, anti-harassment, workplace safety, and ethics education.

It takes all members of an organization to prevent retaliation. Having a policy that prohibits retaliation is not useful if supervisors, managers, company leaders, and employees are not aware of it. The training should address what retaliation is, why it is problematic, how to report it to the organization, and how to prevent it. Supervisors, managers, and company leaders should receive additional education about how to respond effectively to discrimination, harassment, and retaliation reports and create a workplace culture that doesn’t tolerate any of these behaviors.

Looking for a way to educate your employees about retaliation? Consider Atana’s harassment prevention courses that integrate anti-retaliation instruction.