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The Role Retaliation Plays in Workplace Harassment
 
 
The Role Retaliation Plays in Workplace Harassment
 
 

There are some forms of harassment that are not necessarily viewed as harassment in the traditional sense. They are viewed as something altogether separate, although there may be enough characteristics for it to be clearly recognized as harassment. In this case, it's retaliation and there are certain circumstances in which it occurs that make it rather unique compared to other types of harassment. This article will look at retaliation in the workplace and its legal standing as a form of harassment. Additional topics will include statistical information, the circumstances that cause it to happen, and what actions can be taken to prevent it from occurring.

  What Is Retaliation? 

Retaliation is a specific type of harassment that usually occurs in response to a complaint made by the victim against their harasser. Basically, whoever the complaint was directed at is attempting to punish the person who made the complaint and possibly even intimidate them into withdrawing it.1 A lot of the time, the harasser and target of the complaint is someone who is above the reporter/victim in the business' hierarchy, but it can also happen with co-workers who are of equal seniority. If the harasser is someone who is the victim's junior in the business, the circumstances are usually unique to the situation. It's not entirely unusual, but there normally is some kind of power/hierarchy dynamics involved that makes retaliation a somewhat successful kind of harassment on the part of the harasser.

In order for an instance of harassment to qualify as retaliation, there needs to be some evidence that it's an adverse action to something that the employee being targeted did. If they filed a complaint against a specific person or against their employer, or even if they reported the business for something like a safety violation to OSHA (The Occupational Safety and Health Administration), and the harassment began shortly after then it's likely that it's a case of retaliation. In instances where harassment was already occurring-and was possibly the reason for the complaint in the first place-then it may be a bit difficult to prove that retaliation is going on if the harassment simply continues. Looking for things in the harassment that is already going on, like an increase in frequency or severity, may indicate that the harasser has learned about the complaint and is retaliating against the victim for it.

Instances of retaliation can appear similar to other instances of harassment. Additional actions that are common to retaliation include demotions, salary reduction, transfer (e.g. to a different department), negative job performance evaluations, altered duties or assignments, and disciplinary measures.2 Anything that could be interpreted as a unexplained change in the terms of the victim's employment could be viewed as a sign of retaliation if the timing matches. Look at any possible evidence closely before labeling it as retaliation, as some employers may take action that can be interpreted as retaliating by accident.3 Attempts to reduce the harassment by separating the victim from their harasser while the allegations are investigated, while done with good intentions, can be misinterpreted as an act of retaliation (think of transfers).

Another sign of retaliation is termination of employment. While employers technically do not need to provide a reason for firing someone by law, their motivations for doing so cannot be based in discriminatory or retaliatory reasons.4 Wrongful termination is illegal and can effectively be used in retaliation claims and lawsuits as the reasoning is usually revealed during the case, usually through the employer's own disclosure or through the discovery of evidence supporting retaliation or discrimination as the cause of termination.

  Legal Elements
 
 

Retaliation is deemed illegal on the federal and state levels, although the finer details of the laws applicable to the location and/or circumstances can vary. There are quite a few laws relating to retaliation regarding harassment and whistleblowing-or reporting violations committed by the business to the proper authorities-so it's rather well covered.5 They stand on their own as individual laws, but there are some that are tied to anti-discrimination and anti-harassment laws to provide full protection for workers who may be affected. The laws themselves are non-discriminatory, and are applicable to all industries, professions, and workers without exception.

On the federal level, the primary force that enforces anti-retaliation laws is the Equal Employment Opportunity Commission (EEOC). The agency also is the one that establishes the laws and guidelines regarding retaliation and harassment that all employers are expected to adhere to.6 In 2016 the EEOC updated their guidelines for the first time since 1998, with new standards for proving claims of retaliation that critics have deemed a bit too broad by definition.7 At this point, it's unclear if this legal change is as problematic as those critics fear but time will tell in the long-run.

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There are also state-level agencies in each state that are able to process retaliation claims and enforce the laws. Many of them will partner and work with the EEOC on cases, but they are largely going to retain their independence from each other. The inclusion of a state-level agency can assist in any laws that are present in that state that may add to or deviate from the federal laws. Identifying what agency or laws operate in your state can be done through a simple internet search (i.e. "state" + "retaliation").

  Prevalence 

Most experts agree that retaliation is one of the most prevalent forms of harassment to be both recognized and questioned, and that will most likely continue to be the case. In recent years, claims of retaliation have increased along with other forms of harassment. Of the 89,385 discrimination and harassment charges that the EEOC received in 2015, 44.5% were tied to retaliation.8 Based on records the EEOC has collected, the numbers have been steadily rising over a nearly twenty year period; 18,198 cases reported in 1997 through to 42,018 in 2016.9 Keep in mind that those numbers are only what was reported to the EEOC; there could possibly have been more cases that were simply not reported to officials. There also may have been civil suits where the EEOC was not involved regarding retaliation-related allegations.

To break down the data further, nearly all of the claims in each fiscal year recorded reached some kind of resolution-with multiple outcomes in some cases. 2016, for example, saw over 44,000 resolutions with 1,245 (2.8%) finding reasonable cause behind the allegations and 28,620 (64.9%) that did not. While that information may give critics motivation to justify their concerns about the EEOC's expanded guidelines, it is possible that those 28,000-plus cases simply did not have enough evidence. The data should not be taken as a sign that the system is flooded with fake allegations of retaliation, or that making an allegation is a waste of time. There were over 3,200 instances, or 7.4%, where a settlement was reached without going through the full run of the court system. 2016 also saw resolutions where there were withdrawals with benefits (2,739 or 6.2%) and administrative closures (8,248 or 18.7%) that did not go through the court system either. While there may be instances where an allegation of retaliation is false or based on misinformation, there are still plenty that are legally legitimate and should be treated as such regardless.

Financially, the monetary benefits through fines and restitutions for victims totaled upwards of $182 million USD for that year-excluding any financial payout that they received through litigation. Only about 755 or 1.7% of claims failed to come to any kind of successful conciliation or resolution, although a resolution could have come about through a lawsuit(s) outside of the EEOC's involvement. It's safe to say that retaliation actions can be rather expensive for employers, especially when you consider the legal fees and fines that go to the court during these cases. Since there has been a steady increase-which is expected to continue, according to the established pattern thus far-the overall costs associated with retaliation cases will undoubtedly increase as well.

  What Causes It To Happen?
 
 

As stated previously, retaliation is a response to another person's actions. Those who are retaliated against usually filed a discrimination charge against their harasser, complained to them directly, reported misconduct of some kind, or may even have participated in another discrimination case (e.g. as a witness).10 The person(s) who any of these actions are directed towards may act negatively or harmfully in response by retaliating. Whether they realize they are doing so or not doesn't always matter in the long run, as they still took unjust actions. People panic and do foolish and idiotic things, but that doesn't retract from the fact that it was foolish and idiotic from the start.

So why would someone willingly retaliate? Especially in cases where it's clear that there was wrongdoing? Often it involves the person's motivation for the initial actions taken against them. Harassers will see themselves as the ones who are right in a situation, even if they are clearly not, and will refuse to see things otherwise. The retaliation in those instances may be an attempt to further convince their victims of their version of the truth. It could also be an attempt to avoid any punishment that they realize they may have to face as a result of their actions, and not necessarily because they feel guilty about what they've done. Like with employers who accidentally do something that could be interpreted as retaliation, they are trying to do what they think is right and appropriate for the situation.

Retaliation could also serve as a continuation of the harassment that has already, or is already, occurring between the harasser and the victim. They may be aware that what they are doing is wrong and simply not care. In a sense, it may be their way of trying to convince the victim that there is nothing that they can do to stop things from happening. It is also possible that the harasser may see themselves above the law, such as in whistleblowing cases where some kind of law or regulation has already been broken. Taking that into account, there is most likely a healthy dosage of ego involved regardless of the circumstances.

Looking at the nature of some retaliation cases and harassment in general, good-old-fashioned discrimination is a big part of things. Prejudice can be a factor in the treatment of employees even if it did not stop them from being hired to begin with. Some of the beliefs that are tied to discrimination are so deeply ingrained that there are some who really do believe that it's acceptable and that there is nothing that can be done to stop them by law-or that there shouldn't be.

  Is It Preventable?

Preventing retaliation from occurring is a responsibility that lies more with employers and the management of a business than the general employees. As with other forms of harassment, paying attention and being aware of what is going on in the business is very important in preventing, identifying, and addressing retaliation. The best part of that is anyone can do it, and the only hard parts of such a feat is taking the time to do so and the successful application of the EEOC's guidelines.

One of the best things that an employer can do to prevent retaliation is establish that it is not going to be something that is tolerated in the business. Make any anti-retaliation policies clear and accessible to everyone regardless of ranking, and be sure that they are in line with the established laws. Training and education can help as well. Employers can also establish a reporting system for harassment claims that follows strict confidentially procedures; information is released on a strictly need-to-know basis and the bulk of the details should be kept between the reporter/victim(s) and the investigators until actions are taken.11

To avoid any kind of misinterpretation of actions, employers should really reflect on what they are doing and why before making any major decisions about an employee. If you are making a decision that is going to change an employee's status, especially in a negative way, make sure that you are able to back up that decision with legitimate reasons. Is there documentation? Are you in line with policies, both within the business and with the law? Are there personal reasons as to why you are making this decision? Whatever the decision is and whatever the motivations are behind it, everything should be clearly established for the sake of justification and legitimacy.

 
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