What is Retaliation?
Imagine you reported bullying by your manager or colleague, only to find that they subsequently spread rumors about you or ensured you were excluded from key meetings or networking events. What if you were called as a witness in a discrimination suit against your employer and were later overlooked for a promotion? What should you do? What protection would you have?
Retaliation occurs when an employer takes some “adverse action” against an employee for undertaking some “protected activity” (such as speaking up about or opposing a discriminatory practice or about some other conduct the employee reasonably believes to be unlawful) or takes some adverse action to try to keep an employee from undertaking a protected activity.
What is a Protected Activity?
Participation in an employment discrimination proceeding is a protected activity. Participation is a protected activity even if the proceeding involved claims that ultimately are found to be invalid. Examples of participation include:
- Filing a charge of employment discrimination
- Cooperating with an internal investigation of alleged discriminatory practices
- Acting as a witness at any legal proceedings initiated because of the charge
A protected activity can also include requesting a reasonable accommodation based on religion or disability.
What is an Adverse Action?
Retaliation in the workplace can include a broad range of “adverse actions”—such as firing, demotion, reduction in salary, harassment, or any other action that adversely and materially impacts an employee’s job performance or career opportunity—in payback or retribution for reporting an issue, raising a concern, or even just cooperating with an investigation of someone else’s complaint. Retaliation can also take subtler forms of adverse action, such as an unexpectedly poor performance review, being abruptly excluded from an ongoing project, or suddenly being micromanaged on every task without adequate justification.
More on Adverse Actions
Adverse actions do not include petty slights and annoyances, such as isolated negative comments in an otherwise positive or neutral evaluation, or negative comments that are justified by an employee’s poor work performance or history. A negative employment action is not retaliatory merely because it occurs after the employee engages in protected activity. Employees continue to be subject to all job requirements and disciplinary rules after having engaged in such activity.
“A friend of mine at another company has been really stressed lately. Her boss regularly shouts at her in meetings and has verbally abused her on numerous occasions. I told her that she should file a harassment complaint as it sounds like her boss has created a hostile work environment for her. Her boss found out from someone in HR that my friend was considering filing a complaint. He then threatened my friend that he would implicate her in a civil case that the company was defending and that she’d be charged and have to appear in court.”
Any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights is considered an adverse action.
“I heard of a case where someone started a new job and when their new employer discovered that they had filed a sexual harassment complaint against their previous employer, they decided to terminate the employee’s contract.”
This is also an example of an adverse action. Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful.
In the context of retaliation, a “covered individual” (in the context of discrimination and harassment claims) is any employee who has opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on a protected class. Covered individuals may bring their claims to the US Equal Employment Opportunity Commission (EEOC) or the relevant state agency, in addition to raising their concerns internally with the company. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals.
For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation. Individuals who have brought attention to violations of law or company policy other than employment discrimination, although not covered specifically by the EEO laws, are still protected by the company’s anti-retaliation policy and may have additional protections under other federal and state laws.
We’re working on one of company’s biggest projects, so everyone is feeling the pressure. Just this week Bao was short tempered with François, one of the younger guys on our team. I had a quiet word with Bao about her behavior, but I keep hearing her using abusive language when talking to Francois.
Javier’s team is working on a high-profile project. Everyone in the team is feeling the pressure, but Javier notices that the project lead, Bao, who is a more senior colleague, has been very short tempered with Francois, a junior colleague. He has talked to Bao about her behavior but then overhears her verbally abuse Francois.
What should Javier do first
- Report what he has seen and heard to his line manager, HR business partner, or Legal department.
- Nothing, this doesn’t impact on Javier in any way so it’s none of his business. Plus, he doesn’t want Bao to start abusing him.
- Have a word with Francois and tell him he needs to stand up for himself more.
- Tell Bao to stop bullying Francois.
If you witness harassment or discrimination, you should report what you see and hear without fear of retaliation. Remember, continued verbal abuse constitutes harassment and must be reported. If you witness a violation, you can find out who you need to contact here.
Javier reports Bao. Which two acts of retaliation should Javier watch for?
- Bao spreading rumors about Javier to his other colleagues.
- Bao ignoring Javier in team meetings.
- Bao reporting Javier to Human Resources for an incident that he concedes did actually occur.
Any targeted action taken in response to being reported may be considered an act of retaliation. But an individual is within their rights to report a colleague if the colleague was involved in an incident, even if that colleague had previously filed a complaint against the individual. Remember, it’s important that you are able to recognize the actions that may be considered retaliation that may follow reporting a colleague.
Taking Action Against Retaliation
Bao has stopped responding to Javier’s emails and has not included him in important group emails. Javier recognizes this as an act of retaliation for reporting Bao’s harassment of Francois.
Which two actions are appropriate for Javier to take?
- Talk to Bao and inform her that she is acting inappropriately.
- Stop emailing Bao. She probably won’t reply.
- Ask a colleague to forward him any emails from Bao.
- If these actions continue, report Bao.
- Do nothing. Hopefully she will get over it soon.
Thanks for helping Javier
Javier should try speaking with Bao first, if he is comfortable taking that step. If not, he should report her to the Human Resources department. Her actions will affect the team’s work. If Javier decides to speak directly with Bao and the retaliation continues, Javier must report Bao’s actions to the Human Resources department.
Remember, it’s important that you:
- Can recognize retaliation that may follow reporting a colleague.
- Know the actions that may be considered retaliation.
- Can appropriately respond to and report retaliation.
This is content from the Anti Harassment and Discrimination Course