What Is Retaliation in the Workplace?

What is retaliation in the workplace?

Workplace retaliation is when an employer or company leader takes negative action against an employee who files a formal complaint about workplace discrimination or harassment. The Equal Employment Opportunity Commission (EEOC) considers the act of filing a complaint a “protected activity.” Because it’s protected, this can make it illegal for an employer or other company leader to respond to the complaint in a disciplinary or inappropriate manner.

Common responses from a manager that the EEOC considers workplace retaliation are:

Keeping employees from attending meetings or other business events
Transferring an employee to a different department or work location
Withholding the employee from a raise or promotion
Providing the employee with a negative performance review
Making the employee’s work environment feel unsafe or uncomfortable
Limiting the number of hours the employee works

In some instances, acts of employment retaliation by management and coworkers may be subtle enough to go unnoticed by upper management and employers while still affecting the employee. Signs of subtle workplace retaliation include:

‘Cold shoulder’ treatment by coworkers and managers (e.g., ignoring the employee in the breakroom, leaving the employee out of group activities such as coworker lunches and after-work happy hour, etc.)
Excessive micromanagement of employees and being overly critical of work that was previously acceptable
Managers and coworkers spreading false rumors about employees

Workplace retaliation behavior without a formal complaint

While retaliation in the workplace is always unacceptable, it sometimes occurs despite employer guidelines and policies. In some cases, simply taking the first step of reporting an incident to a manager can lead to retaliation, even if the complaint isn’t officially filed with the human resources department or the EEOC. Individuals who act in a retaliatory fashion can include managers, supervisors, coworkers and in some cases, employers themselves.

Employees (coworkers) who participate in this type of behavior may be doing so in fear of losing their own jobs or at the request of a manager or supervisor, while upper management may retaliate against an employee to try to force them to quit their jobs or intimidate them into not filing a formal complaint. Here are some examples of employee actions taken prior to filing formal complaints that can result in workplace retaliation:

Reporting sexual harassment by a coworker to a manager
Going above a manager or supervisor to the company owner or CEO to report a workplace incident
Requesting disability accommodations
Intervening to protect a coworker from acts of bullying or harassment
Refusing to follow certain job orders that may result in physical or sexual harassment or discrimination

How to prevent workplace retaliation

If you take proper preventative measures, you can keep workplace retaliation from happening in your office. Follow these steps to help prevent workplace retaliation:

Create policies that outline your company’s retaliation guidelines

Educate and inform your employees and company leaders of the retaliation definition in the workplace by clearly outlining it in a policy. In your employee handbook, add a section that explains what workplace retaliation is and detail your anti-harassment and anti-discrimination rules. This policy should encourage employees to feel safe approaching leadership or the human resources team with any harassment, discrimination or retaliation claims.

Train all staff members on these guidelines

After giving your employees a chance to review these guidelines and policies, provide training sessions to ensure they clearly understand these rules. Hold a session for employees that defines workplace retaliation. Provide another to teach human resource staff members how to handle retaliation claims. Host a final session that helps managers understand how to prevent workplace retaliation.

After conducting these training sessions, provide an official document stating you held them. Have each staff member sign and date the document to prove they have undergone the training and understand the information in the sessions. Keep these documents for future reference.

Hold disciplinary meetings with employees, and report them all to human resources

If a supervisor is disciplining an employee for valid reasons, they should report each disciplinary meeting with human resources before holding the meeting with the employee. Tell the manager to document their reason for the meeting, and have human resources approve the disciplinary action they’re taking before they follow through. This helps ensure the action taken is appropriate in case an employee claims it as workplace retaliation.

Document and keep files of each meeting and warning

The supervisor should document each disciplinary or warning meeting to prove they distributed warnings before taking action. Managers should also gather emails, files and projects to prove the employee demonstrated poor work performance or inappropriate behavior. Keeping an abundance of files that justify the actions of your company leaders and supervisors can be an effective way to prevent workplace retaliation.

Make sure your employees’ information remains confidential

Encourage your employees to first meet with the human resources department if they have any complaints about company leaders, supervisors or managers. The human resources representative should ensure the information the employee shares in their meeting remains confidential. They should also assure the employee they are protected from any possible retaliation related to this complaint.

If the employee believes they are experiencing retaliation in the workplace, the human resources staff member should consult the employee handbook to go over your organization’s retaliation policy to help the employee make sure their claim qualifies as workplace retaliation.

FAQs about workplace retaliation

Here are some frequently asked questions managers may have regarding workplace retaliation policies:

What are examples of other EEOC-protected activities?

There are certain legally protected activities employees can engage in without receiving disciplinary action from their employers or managers. Examples of EEOC-protected activities are:

Making formal complaints to human resources or management about discrimination at work from a fellow employee or a supervisor
Taking part in a discrimination investigation or lawsuit against the company
Filing a discrimination charge against a manager or other company leaders

What are examples of false workplace retaliation claims?

Sometimes an employee may believe they’re receiving workplace retaliation when their supervisor’s actions may be appropriate. Here are some examples of instances when a workplace retaliation claim may be false:

If a supervisor has documented proof of workplace performance issues with an employee and gives a negative evaluation
When a manager gives an employee several warnings regarding documented complaints of inappropriate behavior and eventually lets them go
If a manager disciplines an employee who regularly clocks in late to work

How do I investigate if an employee makes a workplace retaliation claim?

If one of your employees approaches a human resources associate claiming they feel a supervisor is retaliating against them, you can investigate to confirm if this is a correct claim. Ask human resources to meet with the supervisor to learn their perspective and review what workplace retaliation is and your policy on it.

You should also talk with any employees who witness regular interactions between the employee and manager to gain another side of the situation. You can then collect documents and reports that may act as proof that the manager did or didn’t retaliate against the employee. Keep all personal information confidential when completing this investigation.

Is workplace retaliation the same as employee retaliation?

Workplace retaliation pertains to acts of retaliation performed against employees by managers, supervisors and coworkers, while employee retaliation refers to acts performed by an employee against an employer. For example, an employee who feels they were unfairly disciplined, fired or laid off may retaliate by posting a negative review about their employer online or by spreading negative rumors about the company or its employees.

What Is Retaliation in the Workplace?