Anti-Retaliation Checklist: How to Prevent Retaliation in the Workplace

In the fiscal year of 2020, the Equal Employment Opportunity Commission (EEOC) received 37,632 complaints of retaliation, which constituted almost 56% of all complaints filed with the EEOC. There was a decrease in the number of complaints in 2020 because of the pandemic and changing trends in the job market, but retaliation claims reached their highest percentage of the total number in the past five years.

To learn more about how to prevent retaliation in the workplace, we first need to see what constitutes retaliation.

We will once again turn to the EEOC and their definition of retaliation. It is considered retaliatory and illegal to punish job applicants and employees for exercising their right to report discrimination and harassment. The same goes for punishing an employee for blowing a whistle and reporting illegal activities at work.

EEOC further indicates that it’s unlawful to retaliate against an employee if they were a witness (and testified) in an EEO investigation, refused to engage in discriminatory actions, resisted sexual advances, protected a colleague from such advances, or asked for a disability or religious practice accommodation.

If you are still unsure about what retaliation looks like, let’s examine some examples that illustrate possible retaliatory situations.

Workplace Retaliation Examples

Retaliation comes in many forms. It can sometimes be so subtle that an employee doesn’t notice they are retaliated against until those subtle actions escalate into harassment, for example. Let’s look at a few made-up scenarios to show what retaliation could look like in a place of work.

Say you run a software company, and your engineers are divided into teams. You have one all-male team, but they needed reinforcement, and the latest addition to the group is a woman. Let’s call her Sarah. Her male counterparts start talking down on her, making her feel less knowledgeable and skillful than them. 

When Sarah brings out the problem to her manager, he takes the side of her male colleagues instead of trying to remedy the situation. 

Sarah continues doing her job but feels uncomfortable with how her colleagues treat her. She then decides to talk to an HR specialist, who then reaches out to Sarah’s manager, offering a solution. Instead of communicating the problem to the team and trying to fix it, the manager retaliates against Sarah for telling on him.

He starts overwhelming her with tasks and deadlines she can’t meet and then gives her poor performance reviews. That leads to her demotion and salary reduction, and Sarah becomes stressed out and devasted. She may then decide to reach out to the HR team member again and report retaliation or gather her evidence and file an official complaint with the management.

Here’s another scenario that illustrates workplace retaliation. Let’s say you are a regional manager of a retail franchise. One of the stores under your management is in a mostly-white neighborhood (let’s face it, they still exist), and the store manager hired a person with a different background to encourage diversity. That person wears a turban, and let’s say his name is Aram.

The store manager starts receiving complaints from other employees and some customers that the turban might be inappropriate in that place of work and that it is scaring off regular customers. The store manager could transfer Aram to a different store in a more diverse neighborhood, farther from his home, but where he would be accepted.

Even though the manager had Aram’s best interest in mind, the new store could be less desirable for him because of location or some other reason. Aram could perceive the situation as unintended retaliation against him. 

The manager could also decide to demote Aram and reassign him to a position in the warehouse, where he wouldn’t face customers in his everyday job. Aram may choose to accept his new role without complaint, or he can file a claim for being discriminated against based on a protected characteristic and subsequent retaliation. The claim would reach you, too, as you are the regional manager and store manager’s supervisor.

Those are only a couple of examples of what retaliation could look like in the workplace. Managers sometimes even go as far as blocking an employee’s advancement or even terminating an employee because they report them for harassment or discrimination. It’s vital to recognize retaliation and end it before it goes too far and people get hurt in the process.

Recognizing and handling retaliation has never been an easy task, and remote work has made it more difficult than ever before. At the same time, it is more important than ever to support your employees and make them feel comfortable speaking up, even though that conversation will most likely be on a Zoom call instead of face-to-face.

How to Recognize Retaliation in the Workplace

Managing a team can be pretty challenging, not to mention managing an entire organization. That’s why it’s not easy to spot signs of retaliation, especially since employees can confuse them with legitimate business decisions.

Sometimes, a demotion is just a demotion based on an employee’s poor performance. However, managers should ensure they do everything by the book and evaluate everyone’s performance objectively. By doing so, they wouldn’t give rise to any potential complaints of discrimination that could lead to retaliation.

Both managers and employees should be aware that not every negative experience is necessarily retaliation. Employees should carefully evaluate whether an action is retaliatory, and managers and employers should investigate every complaint they receive.

Common signs of workplace retaliation

• A hostile work environment: You never want to see hostility at your company as it influences everybody and leads to dissatisfied staff and decreased productivity. If you notice things like verbal abuse to one or more of your employees, that could be a sign of retaliation. A manager scolding and publically shaming an employee or spreading malicious rumors about them could also indicate retaliatory actions.
• Undeserved poor performance reviews: Managers could express retaliation by giving poor performance reviews to an employee who doesn’t deserve them. The employee would then feel underappreciated and wronged, and they would have every right to report their manager to the HR team. You should then investigate to determine if the reviews are objective or an act of retaliation.
• Salary decrease: A decrease in salary could result from restructuring or financial difficulties, which would be justifiable. But suppose managers or supervisors use those biased performance reviews we mentioned to reduce an employee’s salary. That would constitute a potential retaliation act.
• Demotion or exaggerated disciplinary procedures: Disciplinary procedures and demotion are legitimate tools managers use with employees who perform poorly or diminish company culture. Disciplinary measures that are not adequate for the committed deed could be a reason to investigate the matter.
• Termination: Like the actions listed above, termination could also happen for legitimate reasons. A red flag could be when termination occurs after an employee reports their supervisor for harassment or discrimination some time ago or if they testified in a colleague’s discrimination case.

How to Prevent Retaliation in the Workplace?

Retaliation sometimes happens because people react rashly and emotionally if someone accuses them of wrongdoing. To prevent such cases, managers should go through training to equip them with skills to resolve conflicts and control their emotions and actions. It might not always be easy, but it is undoubtedly necessary.

As with many other workplace problems, prevention is the first thing that comes to mind when thinking about how to prevent retaliation in the workplace. Retaliatory behavior usually comes from a position of power, where preventative measures should also start. Here’s a list of actions that could help your company deal with this problem:

Create an Anti-Retaliation Policy

Anti-retaliation policy is an invaluable document for your company, and you should create it before any incidents occur and make it available for everyone to read and sign. Its purpose is to instruct all employees on how to prevent retaliation in the workplace and indicate all the potential consequences of retaliation.

The policy should also provide guidelines for employees to report retaliatory actions and for the HR team on how to investigate a claim. It should also instruct the management on how to handle potential cases and point out possible legal repercussions.

Provide Employee Training

Education is the most crucial step in preventing retaliation in the workplace. First, you should identify what training is suitable for which group of your employees and divide them accordingly.

For example, your employees should learn to recognize and adequately report retaliation. As we can see, not all “negative” actions are meant to be retaliatory, and making hasty accusations could influence an employee’s position at the company.

Your management team should know about the best practices to prevent retaliation and implement them in their everyday work. Organize a training every once in a while about management techniques and how to handle employees’ complaints.

The HR team should be in charge of providing all the necessary training. They are also the ones to encourage people to speak up and investigate every claim that comes their way.

Last but not least, your HR team should also be able to recognize and single out candidates who are not a cultural fit for your organization. Eliminating discriminatory practices and conflicting personalities early on can minimize the possibility of workplace discrimination and all its consequences.

Empower Employees to Recognize and Report Retaliation

Just like you encourage employees to report discrimination and any type of harassment, you should also encourage them to come forward if those complaints later result in retaliation. Your policies should mandate zero tolerance for retaliation, and you need to ensure everybody abides by that rule.

Empower people to speak up even if they were not the victims of retaliation themselves but have witnessed it in a place of work or the online environment. Recognizing retaliation and not confusing it with regular management tools is not easy, but it is possible with adequate training.

Make sure your employees know they won’t be reprimanded if their allegation turns out to be unjustified. You wouldn’t want fear to stop them from reporting forbidden practices in the future because that could lead to an unhealthy work environment.

Investigate All Internal Retaliation Claims

No matter how plausible a claim may seem, you need to ensure that your HR team looks into it. Even if it is something that may seem like a minor incident, it is worth investigating. Why? Because it will encourage people to come forward in the future and help you maintain a healthy and welcoming workplace culture.

Also, if you fail to investigate a claim that later turns out to have been viable, you can inflict a lot of damage to the company culture and your reputation as an employer.

Document Everything for Future Use

Every new process is a learning experience. Document every complaint, meeting, interview, all investigation steps, and conclusions your team draws. When you are investigating a complaint, deliver your verdict in writing as well, together with all the evidence you gathered.

You also come across positive things and learn a lot during these processes, so make sure you also document achievements, good practices, and praises.

Documenting everything gives you a chance to perform a more thorough investigation. For example, along with recording people’s statements, it might be good to include any related performance reviews, reports, or anything that can help you evaluate the case better.

Ensure Confidentiality

People find it easier to speak to the HR department and report retaliation if they know that everything they share will remain confidential if they prefer it. The HR department should ensure they only share the necessary details and reveal the complainant’s identity only if it’s absolutely inevitable.

A company should also make it one of its top priorities to protect whistleblowers. That would include keeping their identity confidential and protecting them from retaliation, especially since it’s illegal to retaliate against whistleblowers.

Follow Up and Update Your Company Policies

Once you conclude the investigation and implement all (if any) appropriate corrective measures, don’t forget to follow up with the employee who suffered retaliation. By doing that, you will let them know that you care about their well-being and that you value your employees.

At that point, you can also evaluate the entire process and see what you’ve learned from it. It will allow you to update your anti-retaliation policy and improve your approach for the future.

How Insurance Can Help You

As much as you try to prevent retaliation in your company, you’ve got to be aware that you can’t always control everything, especially not people. Even with all preventative measures, retaliative actions could occur at your company, too, and the victim might decide to sue you for not protecting them.

The policy that would best respond to this claim is the employment practices liability insurance (EPLI) policy. It provides coverage in case your business is being sued for discrimination, harassment, or retaliation in the workplace. It’s there to provide you with legal support and pay for your legal costs, potential settlement, or court awarded damages.

Given that these lawsuits can be quite costly, especially if they go to trial, you could use an insurance policy as a financial safety net. It doesn’t matter if your company is at fault; you would still have to defend the case, and legal costs can pile up quickly if the case drags on for months or years.

If you don’t have an EPLI policy, now may be the right time to talk to an experienced broker. If you are ready to get your online quote, you can sign up to Embroker’s digital platform and get started.