When Retaliation Answers A Complaint… | DCR Workforce Blog

When Retaliation Answers A Complaint…

lawIf you, like me, believe in the uplifting nature of the Hippocratic Oath, a movie like ‘Extreme Measures’ comes with the chilling possibility of unethical doctors and how some of us could prove too ethical to survive unscathed.

The statistics speak for themselves:

  • Forbes Magazine estimates the number of people who faced workplace retaliation for complaining about a situation at work stood at a phenomenal 8.8 million between 2009 and 2011.
  • Another report says it is 1 out of every 5.

If, for any reason, an employee were to try and change the equation by going to court against the unlawful practices followed by the employer, the employer may react in a retaliatory manner and subject the charging parties and witnesses to threats and intimidation. Under the EEOC’s watchful eye, acts of retaliation could boomerang upon their perpetrators. This has been proved time and time again, in different instances, to different employers.

Companies must also recognize that their obligation to prevent discrimination and harassment applies to anyone working on their site or on their behalf.  Protections must include the growing numbers of contingent workers, who enjoy the same rights but may face a much higher likelihood of being harassed at the workplace. Staffing agencies and their clients need to make sure that their policies and agreements provide adequate coverage to this class of workers too.

What amounts to Retaliation?

Any adverse action undertaken by an employer, or others employed by the employer, against anyone who complained against harassment or discrimination (or even participated in an investigation into such acts by testifying to a government/internal agency) can be considered as retaliation.

There are different types of retaliation:

It could be pre-emptive action to deter an employee from filing such a complaint.

The retaliation (or adverse action) could take the form of demotion, disciplinary action, salary reduction, negative evaluation, and change in assignment or work schedules, or termination – where the financial loss is tangible.

In fact it could be any act, which could be perceived by the employee as intentionally negative to his or her interests. The Supreme Court resolved in favor of a man who alleged retaliation when he got fired after his fiancé (and a colleague) sued their common employer.

Federal anti-discrimination laws prohibit the undertaking of adverse action towards an employee: the lawsuit is considered a protected activity, and any causal connection between the two would render the employer liable for a retaliation charge. Under government statutes, the employer or contracting company must prove that the adverse action would have occurred irrespective of the occurrence of the protected activity. Liability extends beyond the period in which the individual was employed or on engagement.  Provision of an unjustified bad reference can result in an expensive liability.

Avoid charges of Retaliation:

The employer needs to ensure that the problem gets fixed. When issues involve contingent workers, the contracting company and staffing supplier share equal responsibility for its resolution.  Unfortunately, many companies move the complainant to a different work shift, location or role to remove the original cause for concerns of discrimination and harassment. This often results in charges of retaliation if the worker perceives the change in a negative light due to a reduction in wages and/or the prestige associated with the assignment. More appropriate measures should include:

  • Limiting the knowledge of a complaint within a small circle, using a need-to-know measure
  • Implementing a whistleblower policy that allows anonymous reporting of issues,
  • Advising employees of the available options to them to seek redress
  • Having a policy in place against retaliation
  • Keeping lines of communication with the employee open
  • Using a formal process to document every aspect of all actions taken

Anti-retaliation measures do not protect unsatisfactory performance.  Companies need not feel helpless if a worker performs below expectations or   indulges in offensive behavior at work. . A negative action against such employees always is possible, provided the company can establish beyond reasonable doubt, through proper documentation of warnings and notices that the disciplinary measure is due to a legitimate and lawful reason.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.