Employers do a lot of things wrong. As an optimist I hope that most of these errors are errors of omission and not errors of commission, as my friend Jon Hyman has once said. As a realist I realize that there may be more intentional wrong-doing than I would like. One area that it is obvious that the wrong-doing is intentional is in acts of retaliation.
Big and getting bigger
According to a report produced by The Network called the 2014 Global Ethics Benchmarking Report there has been a rise in whistleblower retaliation. I did a review of the figures for EEOC on claims of discrimination and found that in 2013 there were more complaints about retaliation than any other protected area, even more than race. There were 38,549 charges of retaliation filed. Race was the next biggest area with 33,068.
Retaliation is intentional
Let’s face it, if you retaliate against someone for filing a complaint, reporting a safety problem, reporting financial misdealing or any of the other areas that protect whistleblowers you are doing it on purpose. You cannot hide the intent in that action. Your lawyer will hate having to defend you. I had one attorney friend tell me that defending a retaliation case is tough. There is seldom any documentation to show that the retaliation was not intentional, and there are times where an action taken against an employee is justifiable. The problem is the action is taken without documentation and too close in time to some protected complaint or action. Subsequently the employee perceives it as retaliation.
Types of retaliation
Retaliation takes many forms, some of it subtle, some not so subtle. Here are some examples:
- Excluding people from participating in meetings or not allowing them to talk.
- Reassigning them;
- Changing their job duties;
- Not sending them to training;
- Openly exposing them as a whistleblower even though they had asked for anonymity; (HR has to balance this one with the need to investigate)
- Bullying them; and of course
- Firing them.
Jillian Heim of The Network says “…retaliation isn’t always glaringly obvious.” She also says ““We are lowering the bar on what counts as retaliation – it’s not just being fired, demoted, etc. – it could be making weird faces at someone, making you feel demeaned.”
The EEOC provides an example as well. They say “It is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.”
Retaliation has a detrimental effect
There are a number of detrimental effects of retaliation on companies in which it has occurred. First it is illegal and is as protected as an act of discrimination. It exposes the company to financial costs such as attorney’s fees, fines and punitive assessments. It harms the company’s reputation and gets the company splashed all over the news.
Beyond the financial effects it also harms the company culture. Employees become less trustful. Many times employees will turnover because they don’t wish to deal with their moral dilemma of working for a company that punishes ethical behavior. It has a detrimental effect of making it harder to find the talent needed to make the company effective. Few talented, good employees want to work for a company whose reputation is one of being unethical and mistreating employees.
What to do
You need to make sure that supervisors and managers are trained that retaliation is as illegal as is discrimination. They need to be told that they will be held to a high standard of conduct when it comes to a situation that might involve retaliation.
HR needs to have its “antennas” up and alert any time there has been wrong-doing, or perceived wrong-doing, reported to the government. Any discipline or change in behavior needs to be noted and corrected as necessary. In other words you had better have a damn good reason for doing something negative to an employee who has been a whistleblower. Even in situation where the employee behavior was malicious you need to be guarded in reacting to that behavior.
Make sure you have a well published policy on reporting whistleblowing situation and making it clear that there is a no-retaliation mandate in your company.
These items will hopefully help you avoid a situation that will end up in court costing hundreds of thousands of dollars.