When it comes to forms of discrimination in the workplace, retaliation may not be the first category that comes to mind for most people. However, data reported by the Equal Employment Opportunity Commission found that retaliation discrimination is far more prevalent than previously conceived, making up 56% of all discrimination claims filed with the agency in 2020.

It overtook both disability and race based claims, which came in at second and third respectively, making it incredibly important that it’s on the radar of all employers.

Having strategies to prevent workplace retaliation can be trickier than expected because of how closely tied it is to interpersonal relationships, but this article will break down the most effective means through which employers can protect their workplaces from facing the repercussions of this form of discrimination.

What is workplace retaliation?

Workplace retaliation refers to the unjust or hostile treatment of an employee by an employer, or anyone in a position of higher authority at the workplace, with the underlying cause being the employee’s exercisement of a legal right or engagement in a legally protected activity that they have found unfavourable.

Common examples of such actions include:

  • Filing a complaint about another worker’s behaviour
  • Reporting any unlawful activity conducted by another worker
  • Requesting certain adjustments to account for disabilities, religious practices etc.
  • Resisting and/or speaking up about sexual advancements

Retaliation itself can take on may forms, such as:

  • Dismissal of the employee from the company
  • Reduction in salary or benefits that they are entitled to
  • Pushing them to do tasks outside of their role as an employee
  • Demoting the employee or denying them a valid promotion
  • Transferring them to an undesirable role
  • Abuse (verbal, physical etc)
  • Threats on the employee’s safety, job or family
  • Unfair work assignments or schedules enforced on the employee

It is important to remember as employers, that this does not mean that employees are protected from any consequences no matter the actions they take. Retaliation can only be claimed by an employee if the cause for the unfair treatment is legally invalid and infringes on the employees rights at work.

This can be tricky because whilst actions such as abuse or threats can be clearly labelled as illegal, other repercussions such as the dismissal of the employee can be within your right as an employer, depending on the context.

To prove that any actions being claimed as retaliation are being made on fair grounds, the employer must show that:

  • The action or activity being addressed is not a legally protected one and is valid as per company procedures and policies
  • Any action taken against the employee is not linked to their engagement with a legally protected activity or action

How do employers spot workplace retaliation?

The tricky aspect with workplace retaliation is that the person making the unfavourable action is also likely aware that they cannot use the actual situation as justification for the retaliatory action, and instead choose to disguise their actions under the guise of other excuses. For example, if the employee rejects their sexual advances they can threaten them by citing that the employee is not yet competent enough for a promotion.

In other cases, the form of retaliation can be a lot more subtle than actions like unfair dismissal- for example, when it comes time to transfer the employee, they can intentionally choose the reassignment to be unnecessarily and intentionally difficult in accordance with the employee’s current life circumstances.

For employers seeking to prevent workplace retaliation, it is important to be on the lookout for signs that insinuate workplace retaliation may be at play.

These signs can include:

  • A hostile work environment has emerged in a certain division or program
  • The demotion or dismissal  of an employee who has been performing well
  • Disciplinary action taken against an employee for a reason that does not align with their past behaviour

With all of these signs, it is important to keep context in mind – for example, has the employee at hand made a recent complaint about the manager that has instigated the disciplinary action? This enables you to see a clearer picture regarding the events and better identify which situations may need to be investigated further.

It is simultaneously just as important to remember that these signs are not concrete indications of workplace retaliation and should not be treated as such. Any suspicions should be followed up with protocol procedures so that all matters are handled within the confines of company policies and the law.

Workplace Retaliation

How can employers prevent workplace retaliation?

Despite the uncertainty that can surround workplace retaliation cases, employers can still have measures in place to prevent their occurrence and provide means through which any employee that suspects they are being subjected to it can seek assistance.

1. Company policies and procedures

Having a strong stance on workplace retaliation and accompanying company policies that communicate this is an important first step. Alongside this should be a process which employees can follow to report any potential workplace retaliation in a manner that is confidential.

Having a clear investigative procedure that focuses on evidence and is fair in handling discipline not only allows employees to feel safer in coming forward but also discourages individuals from acting discriminatorily in the first place.

2. Having informed employees

A common occurrence in workplace retaliation is that employees are often put into a position where they fear greater repercussions if they file complaints or inform anyone else about their situation. Making sure that they know what workplace retaliation is, the forms it can take, the company’s policies and procedures as well their options in such an occurrence makes it difficult for them to be manipulated by anyone in a position of higher authority.

3. Lead by example

Treating all discrimination cases as per the company’s guidelines regardless of who they involve and encouraging anyone that’s been discriminated against to come forward promotes a culture of trust and openness.

One way you can do this as an employer is making sure your HR or management team is objective in its treatment and not influenced by those in the upper management roles of the organisation.