Rampant Retaliation Is Ruining the Workplace

America has become a retaliation nation. Look no further than the workplace—a microcosm of society—where retaliation charges are at an all-time high.

In case you haven’t noticed, malevolent managers are increasingly lashing out at workers. Why? Because some embattled employees have the nerve to stand up and speak out against unlawful discrimination. The result is retaliation, which is synonymous to revenge and retribution by bullying bosses against whistleblowers.

Did you know?

Most sexual harassment cases include allegations of retaliation. This is especially concerning for women’s rights in today’s #MeToo era.
Retaliation violates the federally protected rights of all workers and has a chilling effect on remedying discrimination and harassment.

Why hasn’t retaliation received more attention from the federal government, civil rights groups, the legal community and news media? The public is more aware of job bias based on race, gender, disability, age, religion, national origin and equal pay. But retaliation? Not so much. It’s time to shine a spotlight on retaliation commensurate to the persistent problem plaguing workplaces everywhere.

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Most Frequent Filing

Retaliation is the most frequently filed charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), a decade-long trend. It is rampant from corporate America to small and mid-sized companies nationwide. This insidious form of discrimination is ruining company culture and hurting bottom-line productivity, among other negative consequences for employers and employees alike.

The fiscal year 2018 EEOC data is daunting:

EEOC field offices received 39,469 retaliation-based charges, the highest level ever as a percentage of total charge filings nationwide (76,418).
Retaliation now accounts for over 50% of all EEOC annual charge filings, for the first time ever.
The next three leading bases of discrimination are sex, disability, and race, each accounting for about 32% of the agency’s incoming private sector caseload.

(Note: one charge filing may include multiple bases of discrimination, thus the combined percentage for all bases exceeds 100%)

Race and Retaliation

Race discrimination has historically been the leading charge filing with EEOC. This was true ever since the agency opened in July 1965, one year after being created by the landmark Civil Rights Act. But that all changed in 2009 when retaliation eclipsed race to become the leading EEOC discrimination charge, a trend that has held steady to date. The sharp rise in retaliation may help explain why EEOC’s private sector caseload has dropped by 25% over the past decade, from highs approaching 100,000 in 2010.

Employees deterred from reporting discrimination, due to retaliation, means fewer cases filed and voices heard. Too many employees are being compelled to suffer in silence rather than risk losing their jobs by being subjected to retaliatory actions by management. More retaliation equates to less justice for victims of employment discrimination.

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Retaliation and Harassment

Retaliatory actions in the workplace are often linked to harassment. Thus it’s not surprising that sexual harassment has likewise trended upward in the wake of the #MeToo movement, according to EEOC data. But retaliation goes beyond accompanying harassment to include all kinds of discrimination.

While EEOC reported 7,609 sexual harassment charge filings last year, retaliation cases numbered nearly 40,000. Therefore, only 19% of retaliation charges also included sexual harassment claims. That leaves 81% of retaliation cases intersecting with other types of discrimination, such as gender, disability, race and more. Even if retaliation is included in all types of EEOC harassment charges (which totaled 26,700 in FY 2018), that still leaves more than 13,000 retaliation cases without any associated harassment allegations.

Although retaliation intersects with sexual harassment, it’s not confined to harassment cases. Remember, retaliation has been trending as the #1 charge filing with EEOC for 10-years and counting. Why hasn’t the public heard more about it? Retaliation strikes at the heart of EEOC’s core mission to prevent and eliminate employment discrimination.

Legal Twist

Retaliation can include termination, demotion and many other adverse actions affecting terms and conditions of employment. EEOC issued Enforcement Guidance on Retaliation and Related Issues in August 2016. At that time, retaliation was still the leading discrimination charge, accounting for 45% of all charges. The figure has since jumped to 51.6% of total charges — doubling from 25% in 1999, a meteoric rise.

No worker should be afraid to assert their legal rights due to fear of retaliation. Nevertheless, retaliation remains a dicey dilemma for management and labor alike. It’s important to recall that most job discrimination generally goes unreported, ironically due to fear of retaliation. In addition to EEOC, retaliation cases can be filed at the state and local levels, as well as through a company’s internal complaint system (which are not captured in the EEOC data).

The total universe of workplace retaliation incidents is likely just the “tip of the iceberg” compared to the number of officially reported cases. This is worrisome because retaliation allows a vicious cycle of discrimination to fester with no accountability for perpetrators or relief for victims.

Savvy employers know that retaliatory actions can trample an otherwise healthy work culture. That’s why education, training, and clear communication from the top of the organization are all critical elements to proactively prevent retaliation. CEOs should exert greater leadership by sending an unequivocal message down the corporate ladder that discrimination is reprehensible and won’t be tolerated. However, too many callous companies still employ rogue managers who violate the law with impunity. But there’s also a legal twist for which employers should be more mindful: Even if a discrimination complaint is dismissed as frivolous or without merit, the business can still be held liable for any retaliation.

The trouble for C-suites and HR or legal departments is that too many mendacious managers have knee-jerk reactions against workers who complain about harassment or file discrimination cases. However, retaliation only compounds legal issues for companies. Retaliation also results in a double dose of discrimination for victims— first, based on the initial complaint and, second, the retaliatory action.

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Productivity Killer

Why should companies care about retaliation? Following are three reasons:

Retaliation results in quantifiable monetary losses for overall business operations.
Retaliation kills bottom-line productivity through decreased employee engagement and morale, lower performance, higher absenteeism and reduced company loyalty.
Retaliation is a loser for both business and labor. The only winners are the lucrative law firms that cash in by defending companies. There’s also negative PR which hurts the brand.

Retaliation is commonplace at companies with unethical work cultures. Bad actors among employers have lax policies and procedures regarding professional standards of conduct — including, but not limited to — antiquated HR policies, a dearth of diversity training, ineffective internal complaint systems, and a superficial commitment to equal opportunity.

Unfortunately, not enough companies are complying with EEOC laws, rules and regulations to curb retaliation. Retaliation not only gets employers in legal trouble but often includes bad PR which damages the brand and hurts consumer confidence.

EEOC Responds

Why hasn’t EEOC focused more time and resources on protecting employees against the rising tide of retaliation — and punishing employers? A study cited in an EEOC task force report on harassment found that 75% of victims also experienced some form of retaliation. EEOC has been outspoken about halting harassment, while retaliation has comparatively fallen by the wayside.

When asked what EEOC is doing to address retaliation, agency officials told me the following:

“The Commission continues to focus on eliminating unlawful retaliation through emphasizing it during our training and outreach events, as well as in our oversight activities.”
“Preserving access to the legal system by targeting retaliatory practices that effectively dissuade others in the workplace from exercising their rights under anti-discrimination laws is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).”

Still, at least one out of every two discrimination charges brought to EEOC alleged retaliation in 2018, an unprecedented level. No type of discrimination has hovered over 50% of all charges in modern times, according to agency historical data.

If current trends continue, the percentage of retaliation charges filed with EEOC could double that of race, sex and disability in the foreseeable future. When asked why retaliatory actions against employees are skyrocketing, the agency surprisingly responded:

We don’t have research on why exactly retaliation charges continue to increase.

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Final Thoughts

Retaliation is pernicious and can make an employee’s work-life miserable. Retaliation precludes people from doing their best work.

Moreover, as noted, retaliation by malicious managers stifles business productivity by (among other factors):

Trampling employee engagement.
Causing morale and job satisfaction to plummet.
Preventing peak performance.
Increasing employee absenteeism and healthcare costs.
Resulting in talented employees (human capital assets) leaving to work for the competition.

Conventional wisdom points to government placing the highest priority on stopping the most frequent forms of discrimination. Thus it would be expected for EEOC to devote more resources to relinquishing retaliation, to the extent possible. EEOC says that reducing retaliation remains a strategic enforcement priority. But not enough companies are listening.