What Exactly Is Retaliation and Why Should I Care?

Managers and leaders do not understand retaliation, and that’s a big problem. In a post-#metoo environment, you would think that sexual harassment would be the predominant complaint when it comes to workplace misconduct. If this is indeed what you think, you are wrong…

According to the EEOC’s Enforcement Guidelines on Retaliation and Related Issues, a range of laws “prohibit government or private employers, employment agencies, and labor organizations[11] from retaliating because an individual engaged in “protected activity.”[12] Generally, protected activity consists of either participating in an EEO process or opposing conduct made unlawful by an EEO law.” Here’s a list of protected activities that come into play.

So what does that mean, exactly? Legally, “…a manager may not fire, demote, harass or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.” We’re not employment attorneys, so let’s make it simple – very simple. If someone behaves badly and an employee complains about it, the employer has to be extraordinarily careful about how they treat that employee after the complaint has been filed. By employer, of course, we mean anyone within that organization who can impose negative consequences on the complainant. The definition of negative consequences can be very broad, and that’s where folks get themselves into deep trouble.

There are so many issues relating to retaliation that need to be considered. For instance, a complainant cannot be retaliated against, even if the claims are proven to be false. Retaliatory actions can be interpreted very broadly. Ghost someone after a complaint is filed – that may be retaliation. Move them off of a key account after a complaint is filed – that may be retaliation. Changing their hours, adjusting their responsibilities, altering their benefits, delivering negative performance reviews – you guessed it – these may all be construed as retaliation.

At the 2019 SHRM conference in Las Vegas, one legal panelist stated her view that roughly 90% of harassment claims now have retaliation allegations attached. We cannot confirm if this is accurate (although directionally it seems to be), but the EEOC has stated that nearly 52% of the charges they filed in 2018 related to retaliation. There is a common view that (a) retaliation is much easier to prove than other underlying discrimination allegations, and (b) it is really easy for an employer to retaliate, even if they don’t fully realize that they’re doing it. That’s what makes it so legally-perilous for managers and leaders.

Again, we are not experts on employment law. We are, however, experts on simulation training for managers and leaders, and we have found that they are woefully unprepared to understand and navigate retaliation-related issues. They just don’t get it. You know what? It’s not their fault. The training they receive is not sufficient to identify the risks they face around these claims. We attempt to incorporate an aspect of retaliation into almost all of the simulations we build – it’s that important for managers to understand the dangers.

Let me give a tangible example. One of our more popular sexual harassment simulations relates to Third Party Harassment. There are three conversations in this simulation that the learner, who plays the part of a manager, must navigate. First, the manager is approached by a sales representative who alleges she was harassed by the Vice President of Marketing of the company’s largest client. Next, the manager needs to get guidance from the HR team on how to handle the situation. Finally, since HR needs to investigate the complaint, the manager’s third simulated conversation is with the VP-Marketing in question. As you can imagine, the client is very angry about the allegation. During that conversation, the client, who plays the “we pay you a lot of money every year” card, insists that the complainant be reassigned off of the account since he can “no longer trust her, given these baseless allegations…” Many managers and leaders, who have been trained since the beginning of their career that the client is always right, try to ease the angry VP, saying things like “I understand your concern. This relationship is a top priority for us. We’ll make sure that you are happy.” Well, if making the client happy includes kicking the complaining sales rep off of the account, the manager may very well be walking himself (or herself) straight into a damaging retaliation claim. The frightening part is, they don’t even recognize that they’re doing it.

Managers and leaders don’t understand retaliation, and we need to fix that problem – quickly. Traditional training, online and live, needs to do a much better job conveying the details – what retaliation means, why it matters, what the implications are, how to avoid it. Given the proliferation of retaliation claims, these lessons need to be reinforced through application. Our simulation training does a wonderful job of strengthening the way managers and leaders understand and address workplace retaliation. Left unchecked, we believe retaliation is one of the worst forms of workplace misconduct. If you muzzle the people who are willing to put up their hands and challenge objectionable, unethical, or illegal behavior, the culture of the organization will suffer mightily and the legal and brand ramifications will be tremendous.

Teach your managers and leaders about retaliation please, and then deploy pelotonRPM’s simulations to make sure the message sticks.