Harassment complaint retaliation or even giving the appearance of retaliation against the complaining employee or an employee who cooperates in an investigation is unlawful.
Retaliation can take many forms and most are subtle.
A woman was awarded $167 million in a case in California where her employer retaliated against her for blowing the whistle.
As a Manager, it’s your job to be watchful for any signs of retaliation against the person who made the complaint or against anyone participating in the investigation. Be aware that changes in job responsibilities or assignments, exclusion from professional activities, micro-management or negative performance reviews can be perceived as retaliation.
This is another reason why sexual harassment training is so important.
Immediately report any appearance of retaliation to HR.
So the question often comes up, how do you prove retaliation? What is that? Well, retaliation, there’s two parts to the claim.
The first part of the claim is that you engaged in some kind of protected activity, and classically what that is, is reporting that you’re being sexually harassed, or agreeing to be a witness for someone who is saying they’re being sexually harassed, or that sort of thing.
So that’s easy to prove. And then the second part you have to prove is that something sort of bad happens to you. And I’m being flippant, it’s more technical than that but that’s basically it – you have to prove something bad happened to you.
The Appearance of Retaliation
And that’s the hard part, sometimes the more subtle part, because typically there isn’t some sort of audiotape or videotape of somebody saying, “I’m going to get you for that Smiley!” What you typically have is, someone engages in protected activity, they complain about something. They say, I’m being sexually harassed, and next thing you know they’re being demoted, they’re being transferred, or they’re being terminated.
And so you have to be particularly vigilant in those situations when someone’s complaining to make sure that their performance is being fairly measured and fairly evaluated, and that there isn’t some form of improper bias in the decision about what to do about a particular employee who has made a complaint.
Here is one of the most intriguing cases I ever encountered. Several years ago, I’d hired a very senior sales executive to come out from across the country to relocate to California.
He came out without his family and he lived in corporate housing. And during the course of his employment, to nobody’s surprise, he did become involved with one of his employees. It was consensual – obviously he was married, she was single.
What happened was, occasionally people would see them at various restaurants or bars, hugging, kissing – it was very romantic. So nothing really happened until a point came where we suddenly had to have a reduction in force. And it came to pass that the person that we had to let go was the employee that worked for this senior sales executive. It was a really redundant situation – her position was eliminated.
But she came to me one day and said, “I understand that my job is being eliminated, my boss has told me that.” I said, yes, that’s true. She said, you know, “Is it because I have become involved with my boss? And I said, “I didn’t even know you’d become involved with your boss, but it has nothing to do with that.”
She said, “I think the company might be retaliating against me because, number one, people are whispering about me in the hallway, people don’t look me in the eye.”
“I hear different rumors about how I’m involved with this individual, and it’s beginning to hurt my performance. I think the company might be retaliating against me.”
I said, “No, it has nothing to do with whatever conduct you engage in after hours. This is a legitimate reduction in force. We are going to obviously take care of you, we will give you out-placement counseling, we’ll do some other counseling for you. We’ll do our very best to find you a job.”
But despite the fact that I did my best to assuage her, I was still very concerned that she felt that indeed she had been retaliated against because of her relationship with the senior executive. It was a learning point for me in this process too.
Here is a great post that might help: 15 Key Steps For Companies Responding To Sexual Harassment Or Discrimination Allegations
Consider Accelerate’s online HFC (Harassment Free Culture) training for your organization.
HFC is the Best Harassment Training available because it:
- Has engaging and relatable videos viewable anytime, anywhere; do some in the office, some in the airport or on the plane (LMS permitting);
- Exceeds legal requirements of all fifty US states; and,
- Is provided at a great price.
For more information, email Mike@Accelerate-LD.com.
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