What Makes a Strong Retaliation Case?
One of your top performers files a whistleblower complaint, and suddenly, their team starts excluding them from meetings. Is this a petty social slight or grounds for a legal workplace retaliation case?
Retaliation is the most frequently alleged kind of discrimination in the federal sector. But it can be tough to tell what kinds of retaliatory behavior can expose your company to legal consequences.
In this article, we’ll cover everything you need to know about workplace retaliation: what it is, how to tell when it’s serious, and how to build a strong case when you need to.
What Is Workplace Retaliation?
Workplace retaliation is when an employer punishes or penalizes an employee for reporting illegal or harmful practices, or exercising their rights. Retaliation is illegal when it punishes actions that are protected by the Equal Opportunity Employment Commission (EEOC).
Anti-discrimination laws also prohibit retaliating against the people who report or experience discrimination—these laws are in place to ensure that everyone can speak up about problems and still experience a safe and equitable workplace.
How Can I Identify Workplace Retaliation?
Workplace retaliation can be tricky to identify—in most cases, it’s not very clear-cut. Testing the strength of a retaliation claim is simple: would the retaliatory action deter an average employee from reporting discrimination or disparate treatment or taking part in an EEOC complaint process?
And retaliation doesn’t just mean getting fired. It can also come in the form of demotions, poor performance reviews, pay cuts, threats, or creating a hostile work environment..
What Is the Pattern of Retaliation?
The key elements that constitute retaliation are:
- Reporting an offense or an issue, like discrimination or illegal or dangerous practices, to HR, a manager, or leadership (known as protected actions)
- Facing punishment or recrimination as a result of those actions, like harassment, demotions, or firing
What Are Common Causes of Workplace Retaliation?
While everyone tries their best to be professional at work, sometimes managers or colleagues will take a complaint or action personally and feel slighted. They may feel the complaint is unfair or resent the protected action.
For example, if an employee reports a discriminatory comment made by their manager, the manager may think the employee is overreacting and begin rating their performance negatively without cause or giving them more undesirable shifts. Disciplining an employee for a protected action is considered legally unacceptable retaliation.
Examples of Legally Recognized Workplace Retaliation
Many managers are under the impression that retaliation always means being fired, but there are actually many legally recognized retaliation claim elements. Here are just a few examples of strong retaliation cases.
Actively Excluding Them from Activities, Both in and Outside of Work
Freezing out employees who report unsafe, illegal, or discriminatory actions typically makes for a clear retaliation case. If an employee reports their manager or organization is breaking wage laws or illegally discouraging union formation, for example, and they’re suddenly left out of work events and company happy hours, that makes a compelling case for retaliation.
Reducing Hours or Flexibility
Reduced working hours can be a financial punishment, and refusing to give one employee the same schedule flexibility that’s given to others strongly suggests retaliation if the employee recently engaged in a protected action.
Unfair Performance Reviews
If an employee has consistently received strong performance reviews, and then suddenly starts receiving negative feedback without evidence after taking a protected action, that’s a pretty strong case for retaliation.
What Makes a Weak Retaliation Case?
However, retaliation cases aren’t always cut-and-dry. Employees can confuse retaliation, which is unfair punishment, with experiencing reasonable consequences for their actions. Retribution is when an employee faces rational and foreseeable repercussions for their actions.
A weak retaliation case: An employee claims their termination is due to discrimination, but their performance reviews show consistent failure to meet expectations, egregious misconduct, or other violations of company policy. Not all negative consequences are retaliation.
Retaliation also must be “materially adverse,” which means it would deter an average person from reporting problems. Petty slights or minor annoyances like an occasional snippy comment, while unpleasant, don’t rise to the level of retaliation.
What Does a Retaliation Case Mean for My Organization?
Now that you understand what a retaliation case is, what happens if one is filed against your company? Here’s what you need to know to determine whether the actions would be legally recognized as retaliation.
Receive the Retaliation Case
The way that a report of retaliation is received by your HR team and leadership is important: you want employees to feel comfortable coming to you with these issues, but it’s also vital to maintain impartiality and confidentiality to protect everyone.
Be sure to carefully and thoroughly document everything relevant to the case as well, and clarify anything that’s unclear before you start your investigation.
Investigate the Merits of the Case
Within two to three business days of receiving the complaint, you should begin your investigation. Collect documents, talk to any witnesses, and inform the complainant as well. As you begin to review timelines, key events, and relevant company rules and regulations, document everything meticulously.
If the case is complicated or the allegations are very serious, you may want to bring in legal help from your own organization or an external attorney for guidance and help.
Reach a Decision
Once you’ve gathered all the evidence and determined what allegations are credible, it’s time to decide on the merits of the case. Make recommendations for follow-up steps like disciplinary measures, policy changes, and training opportunities to ensure that this behavior doesn’t happen again.
Look Carefully at Your Culture
One retaliation complaint could be dismissed as a disgruntled employee or a bad manager. But if your organization receives multiple complaints, or you sense that employees are hesitant to come forward about big issues, you’ll want to look more deeply into your internal culture to see if retaliation is running rampant.
It can be difficult to do this uncomfortable work, but talking to employees and examining managers’ and leaders’ behavior might be necessary to root out harmful practices.
How Retaliation Can Harm an Organization
If the retaliation case is strong enough to lead to legal action, your organization will face numerous harms, including not just financial penalties but also reputational and cultural damage.
Financial Harm
Financial harm is probably the first consequence that comes to mind when you think of workplace retaliation claims. If your company is found guilty of retaliation, you may be liable for financial damages, including:
- Back pay for compensation the employee missed out on like any lost wages, retirement contributions, and other benefits
- Front pay for missed earning opportunities in the future
- Other damages like pain and suffering, reputational harm, and other applicable damage to the employee
In one strong retaliation case, two employees were awarded $800,000 because they spoke up to their manager about illegal wage and hour practices and were fired. While these large-sum payments aren’t typical, they can be devastating.
Reputational Harm
The costs of retaliation to organizations aren’t limited to financial costs, although those can be substantial. These cases also damage your company’s reputation as an equitable workplace. A poor reputation makes it harder to attract and retain great employees and leaders, as few people want to work in an environment where retaliation is part of the culture.
Organizational Culture Harm
Retaliation can reduce employee trust in both leadership and the company as a whole. If employees hesitate to come to HR or their manager with legitimate concerns, bad behavior can flourish unchecked. A bad culture can also encourage your best employees to leave, while the negative ones stay and your culture continues to decline.
These serious harms are why it’s critical to take all retaliation cases seriously, and look into them carefully. Even if the case initially seems to have few merits, doing a thorough check can put everyone’s minds at ease.
How to Prevent Workplace Retaliation
Treat Your Employees Consistently and Fairly
Consistent and fair treatment has a whole host of benefits for your workplace culture, but it’s also an effective way to prevent workplace retaliation. And it’s also the right thing to do.
Explain the Rules and Regulations of Your Business to Employees
Retribution and just consequences might feel like unfair retaliation to employees who don’t understand the rules and regulations your business will hold them to.
Communicating these frequently and clearly gets everyone on the same page. Then consequences for breaking those rules and regulations appear as the fair and anticipated outcome of those choices, not an arbitrary punishment.
Foster an Open-Door Environment
A workplace where employees feel safe to talk to managers and leaders about issues and problems is a healthy one, and also one where retaliation isn’t a concern. Ensure that your managers and HR team have an open-door policy for employees to discuss discrimination concerns and are a welcoming, helpful place for employees to turn to.
Create a Thriving Culture
Understanding workplace retaliation and tackling it head-on when it happens is key to keeping your workplace healthy and fair. By recognizing the signs of retaliation and taking proactive steps to prevent it, you can nurture a culture of trust and openness. BambooHR® can help you steer your people operations with a deft hand and promote a positive workplace culture, ensuring that your organization thrives.