The Silent Crisis: The Impact of Retaliation in Your Workplace

Elizabeth Bille

Senior Vice President, Workplace Culture at EVERFI

Learning Objectives

Workplace retaliation is the most frequently filed charge with the EEOC and has been for the last decade. Yet, despite its prevalence and the harm it poses for employers--increased legal claims, decreased employee morale and retention, and damaged workplace cultures--it is a problem that is not on most employers’ radar. This thought-provoking and engaging session will share the alarming findings from a new employer survey conducted by the speaker and the HR Research Institute revealing risk areas that are often overlooked by employers. Attendees also will receive an anti-retaliation action plan that they can implement to prevent retaliation in their workplaces.


Key Takeaways:



  • Learn data from national research about why and how retaliation occurs, who tends to experience it and perpetrate it, and lesser-known risks and warning signs

  • Examine common organizational practices to prevent retaliation and how effective those tactics really are 

  • Receive a checklist of effective practices that can be implemented to help prevent retaliation in the workplaces


"Unless organizations take meaningful actions now, the impacts may truly be just as devastating, if not more so, than #MeToo."

Elizabeth Bille

Senior Vice President, Workplace Culture at EVERFI

Transcript

Hello, my name is Elizabeth Bille and my pronouns are she, her and hers. I’m the Senior Vice President of workplace culture at Everfi, an education technology company. And in this role, I serve as Everfi’s subject matter expert on workplace culture issues. And I help design training for our customers on the critical workplace issues of harassment and discrimination prevention, corporate compliance, and ethics. Before coming to Everfi, I was the general counsel and chief ethics officer of the Society for human resource management, or Sherm before that I was a legal and policy advisor to the vice chair of the EEOC. And before that, I was a labor and employment attorney at a global law firm, helping companies of all sizes from small community nonprofits, to major corporations with their labor and employment concerns. Thank you all for joining me today for our session, the silent crisis, the impact of retaliation in your workplace. Retaliation is an issue that I am personally very passionate about. And as we’ll discuss, I think it’s one that hasn’t got as much attention as it deserves, particularly given the incredible degree of risk it poses for so many organizations. Again, my name is Elizabeth bill, and I’m with ever fi. A number of you may be aware of ever fi and what we do, but if this is your first time hearing of us, I wanted to provide a quick overview. So ever fi provides data driven, Online Training Solutions created by subject matter experts on issues that span workplace culture topics such as harassment and discrimination, prevention, diversity, equity and inclusion, ethics and Code of Conduct to name a few. Now, you’ve heard me call workplace retaliation, a silent crisis. And, in fact, I believe that retaliation could very well be the next me to type issue in the workplace in the next decade. And I say that for three primary reasons. First, like sexual harassment, it is alarmingly common. And it’s incredibly damaging. It’s lingering in the shadows, if you will, and it’s not often spoken about by those who experience it. And finally, it’s not on many organizations, radar screens, most organizations are not talking about it. And even if it is on their radar screens, many are not taking proactive steps to prevent it from happening. But unless organizations take meaningful actions now, the impacts may truly be just as devastating, if not more so than me, too. So how common is retaliation? Well, you may be surprised to hear that retaliation is the most common form of workplace discrimination by a longshot. In fact, it’s been the number one complaint filed with the EEOC every year for the past decade. So as you can see here, 56% of all charges filed last year with the agency involve retaliation. Just for context. 10 years ago, that number was only 36%. So we’ve seen a 20% jump in just 10 years. And to put that in some more context, in 2020, the EEOC received almost six times more retaliation charges than sexual harassment charges. As many of you know, retaliation can violate many laws from OSHA law to anti discrimination. And indeed, just as a side note, OSHA has been closely tracking surges in retaliation claims filed by employees who are complaining about COVID related safety. And the problem is with retaliation, and this happens very frequently, a company can do everything right, and be innocent of the underlying complaint. But then it can violate the law by retaliating. And that’s often where most companies get into trouble. And of course, even if a behavior is not illegal retaliation, it can still be incredibly damaging, it can undermine everything an organization does from retaining top talent, to employee morale, to business innovation.


So to help address this problem, my organization Everfi partners with the HR Research Institute to survey HR professionals about retaliation, and what steps they’re taking to prevent it and we wanted to see how effective those steps were. And I’m very excited to share the results of that research with you today. So as you know, retaliation in the workplace can take many forms. So in our survey, we asked employers to indicate whether their organization would consider a whole host of actions to be retaliation. And what we found is that many organizations are unaware of actions that are potentially risky. Many employers responses focused on the really egregious acts of retaliation like termination, or demotion. But far fewer HR professional said their organization would consider the actions on this slide to be potentially retaliatory. So take a note in particular about performance evaluation downgrades, changes in duties and work schedule, changes in work location or changes in benefits. These only registered about the 60 to 57% of employers saying that that could be retaliatory. The problem with this is twofold. So first, employees themselves very often view all of these actions as retaliatory, which then can lead to legal claims, and, of course, damage to workplace culture. And second, law makers, they tend to agree with employees in this area. The EEOC and the US Supreme Court have stated that all of the things on this slide could be so for example, the Supreme Court has said that changing the work schedule of a parent to cares for school aged children, or excluding an employee from a weekly training lunch that helps with their professional development, that could also be retaliation. So the takeaway from this slide is, number one, ensure that your retaliation policies are broad enough to include these forms of retaliation. And second, be sure to educate and train your employees and especially your leaders about the many forms of retaliation, including a wide array of examples such as these, that should be avoided post complaint. So next, I’d like to ask you a question. Why do you think employees or leaders retaliate? years one area where I’d be interested to hear your thoughts in the chat. Now, when we looked at what prompts retaliation against a colleague, we found that emotions and assumptions are a driving force. In fact, the most common reason cited for workplace retaliation is personal feelings of anger, embarrassment, hurt, or betrayal. And you can see that here on the slide. It’s 61% of respondents say that’s why employees retaliate. These are the sentiment that a complaint is a personal attack on me, or my integrity or my role as a leader. The second most common reason involves viewing the person who reported the harm as disloyal, a troublemaker or not a team player, shifting some of that blame of wrongdoing back onto the reporter, by characterizing the act of complaining as destructive to the workplace culture or undermining the success of the team. The third is sort of tit for tat. If you complain about me, I’m going to scrutinize you. And as you can see, at the bottom, far less common are people retaliating because they believe the person making the report, file that with that intent or was lying. So given the date on the previous slides, what are some of the warning signs or some of the red flag phrases that might indicate that someone is likely right to retaliate?


As we go through these, I’d invite you to think about or to type in the chat, whether some of these resonate with you if you heard these in your practice, or perhaps Are there others that you’ve heard that are not here on the slide. So starting in the top left corner, you know, I was so upset that they went to HR instead of coming to me first. It’s possible, this is just a statement of regret that the leader hadn’t created the kind of open door environment that would engender that trust to come to them first, but it also could signal embarrassment, or the hurt, that could lead to retaliation. Number two, I really trusted them. How could they do this to me or I thought they were a team player. This is triggering those feelings of anger of hurt, and also that that sentiment of disloyalty that the person has done something to undermine the team. And number five, then of course, how often have we heard that, you know, I’ve noticed a shift in their performance lately. All of a sudden supervisor start raising performance issues that you’ve never heard before her or hadn’t been in performance evaluations. These are not 100% predictors of retaliation, of course, but they are indicating indicators that the person is having that emotional response that can trigger retaliation, so you’ll want to tune in if you hear these phrases. Alright, now, let’s turn to who typically does the retaliating. Now, one might think that workplace retaliation is committed primarily by managers against their direct reports. But our data revealed that’s actually not often the case. Nearly half of respondents 49% or excuse me, 46% say that the person retaliating is sometimes or often some other leader in the complainants chain of command. 35% said that it’s a leader leader outside of their chain of command completely. And 51% said it was a peer level colleague. As you see here, retaliation sometimes occurs by employees against their supervisors. I be curious if you’ve seen these trends to about leaders or people outside of the immediate supervisory relationship retaliating. So what does this data counsel us to do? Well, it shows that employers really have to take an organization wide approach to preventing retaliation, we need to communicate our policies, and provide training to everyone, not just those with direct supervisory responsibilities, and we need to monitor against retaliation occurring by anyone because it can be perpetrated by many people in the organization. Now, while workplace retaliation can happen to anyone in the organization, some employees according to our survey, seem to be more susceptible than others. And the majority of HR respondents to our survey said that low performing employees are sometimes are often the targets compared to high performing employees who are only the targets about 36% of the time. Interestingly, women seem to be much more likely to be targets of retaliation than men. So given what we know from the previous slides, it’s clear that retaliation is not really a force outside of our control. It’s an it’s an area of organizational risk, a risk to our compliance to our workplace culture and truly to our business success. And just like other organizational risks, we can’t address it by simply saying, don’t do it. We should proactively prevent it. We should manage the risk through some straightforward policies, procedures, training, and of course enforcement. Just like we do, quite frankly, with our workplace safety or data security initiatives. So for the remainder of our time today, let’s take a look at how you can create a straightforward and simple anti retaliation program, and how that can reduce the risk of retaliation in your workplace. Now, the good news is that our research showed that amplifying your focus on retaliation and implementing some straightforward procedures really pays off. Indeed, just simply prioritizing the issue, according to our data, seems to help employers have less of a retaliation problem.


So as you can see from the data on this slide, among those who say that preventing retaliation is not important to them, or it’s only somewhat important, almost half of those organizations say 49%. That retaliation does occur sometimes or often in the workplace. Contrast that with those organizations who say that preventing retaliation is very important to them, or extremely important. Only 17% of those organizations say that retaliation is occurring in their company. So what should organizations do to effectively prevent retaliation? Let’s start with the policy. Now, unfortunately, we did find that only 68% of organizations surveyed have an anti retaliation policy currently. So if you don’t have one now, I’d encourage you to put that down on your to do list of those that do have a policy, we wanted to find out how employers are sharing that policy and whether that method of communication actually makes a difference in retaliation rates. And what we found is that it does those employers who actively communicate their anti retaliation policies. So through training, or communications from senior leaders, things shown in this box here on the slide, those organizations are far less likely to say that retaliation occurs sometimes, or often. Contrast that with those companies that take a more passive approach or more check the box approach to communication. So those who only put it on in a handbook or on their intranet, for example. The majority of those organizations say retaliation is occurring sometimes or often. So training and can ongoing communication spec, especially those more active forums that you see here. The is crucial to reducing your risk of retaliation. So with all of that in mind, what kind of a plan should organizations put in place to actually prevent retaliation from occurring? I’d recommend a two part plan. One consists of ongoing year round measures that occur before a report happens. And another is a list of things for post report or post report procedures. So let’s help you build that plan right now. Now, it’s important to know that it’s you need to start working on your action plan now. And here’s why you don’t actually have a lot of time to get this work right after a complaint has been filed. In fact, according to the ethics and compliance initiative, 72% of employees who experienced retaliation, said that the retaliation happened within three weeks time of them filing a complaint. Sometimes we have even less time than that to get the work right. The same survey found that 40% of retaliation occurs within the first week alone after the report has been filed. So this counsels us to make sure we have procedures in place before that complaint is made, what comes to us. Alright, so what are those pre report elements of your action plan? First, as I mentioned before, you’ll want to implement a policy. And remember, as we discussed, be sure to include a broad array of examples of potential retaliation, not just the egregious ones, but to those more subtle forms that are also prohibited. Now, I’d recommend having both a standalone policy and a specific standalone policy on retaliation, as well as incorporating anti retaliation, prohibited visions or retaliation prohibitions in a whole host of other policies. So as a paragraph in your anti retaliate in your anti harassment policy, your anti discrimination policy, some of your compliance policies and the like. Next, you want to communicate that policy. Now, be sure to leverage those active ongoing channels that we mentioned just a moment ago, such as training, and leader communications, lifting up that policy and keeping it top of mind for your employees, not just relying on your handbook or your intranet. Next, you want to encourage reporting, it’s a good idea to have multiple channels that employees can use to report concerns. And considering on anonymous options so that people really feel safe coming forward. Make sure to check that your systems are operating and not just, you know, reports aren’t just going to an email account that no one is checking, or perhaps that is going to someone who is no longer with your organization.


Next, you want to train employees and supervisors on retaliation and how to prevent it. It’s a great idea to include scenarios that show again, those breadth of actions that could that could be retaliatory. It’s also important to train supervisors on what to say if an employee comes to them to report a concern. So how do you handle those often awkward conversations when someone sits down in front of your desk and says I need to talk to you about something? How do you you respond in a supportive and professional way? Well, of course, not passing judgment on the merits of the complaint, but indicating that it will be handled appropriately. Consider publishing your complaint handling procedures to help explain what happens next. After someone files report, there’s a lot of concern by employees often about the unknown of what’s going to happen next after they come forward. So to reduce the unease about speaking up and to show that you can take complaints seriously, consider putting together an infographic about what happens after you call the hotline for example. And finally, of course, consistent and fourth is enforcement of your anti retaliation policy is key. There’s really no greater deterrent to retaliation than that. So after a report is file, you’ll want to when the person comes forward, reiterate with them and talk with them about your non retaliation policy. Sometimes there’s confusion about what constitutes retaliation, so be sure to give the reporter guidance about your policy and especially who they can reach out to perhaps in HR, if they have any questions, and who they can reach out to at the first sign of concerns before they escalate into Potentially illegal retaliation. Next, you want to explain to them what’s going to happen next after they filed the report, you’ll want to thank them for coming forward.


That helps.


That helps a great deal to set the tone that that these reports are, are taken seriously, and that there won’t suffer retaliation. You’ll want to explain what’s going to happen next. And in general terms, of course, since every investigation or situation is different. So you might say something like, you know, typically in our process, after we speak to you will speak to the person about whom the complaint is made. And then sometimes, we’ll discuss with witnesses, things like that, just the steps in the process. Next, you will want to coach your managers and leaders on retap non retaliation and strategies for having positive interactions with them or how to manage the reporter. Post complaint. Of course, it’s it’s human nature to be uncomfortable. The key here is to advise them that try to be as business as usual as possible. And the advice is really don’t treat the employee any differently than you would have treated them before this report occurred. Next, you want to close the loop, both for the accused and for the reporters and any witnesses that you spoke to. Once the investigation has been complete, outline the steps you took, again, in general terms is often a good idea. If you’re comfortable sharing the outcome of the investigation, or if this fits within your procedures, or your risk tolerance, perhaps say that the investigation determined the complaint was founded. And, of course, you know, different organizations have different policies regarding how much they share and with whom, so be sure to follow that. But to the extent that you can share something more than it was taken care of, that can demonstrate that accountability that we described is so important. And again, remind all the parties and those close out conversations about their obligations under your non retaliation policy. Next, you’ll want to check in with the reporter, and any witnesses or people with whom that you interviewed as a part of the investigation process, checking with them on an ongoing basis just to make sure that nothing is happening that could amount to retaliation. And again, remind them that you’re you’re there in case they have any concerns. And finally, designate someone to monitor performance reviews of everyone involves the reporter again, anyone who participated in the investigation. Very often, if there’s going to be retaliation, sometimes it creeps in in the next performance evaluation, or references to the participation in an investigation or references to a complaint made. These could be real red flags for retaliation, and also provide evidence to an agency like the EEOC that in case of retaliation complaint is filed. So I know that after an investigation, you’re ready for it to be done, everyone is tired and you’re ready to move on. But this really is the most critical time so taking these after the report steps can go a long way in preventing retaliation from occurring. So as we close out, remember, examine your risk areas that we talked about in this presentation. Remember that retaliation can be engaged in by a whole host of people within the organization. keep an ear out for those Red Flag Warning phrases, if you will. and engage in training, make sure you have a policy in place those steps that help prioritize retaliation, and then take those proactive steps in the action plan. And all of these things together can go a long way in helping minimize the risk of retaliation in your workplace. Thank you so much. It’s a pleasure being with you today.


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