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Retaliation Against Whistleblowers Still All Too Common

In the US since 2009, retaliation has been the most frequently alleged basis of discrimination, according to government data; firms need to get their training right and have a clear plan to respond to retaliation cases

There’s a common thread of retaliation running through three recent and high-profile allegations of workplace harassment and discrimination against female employees.

In recent months, these companies have all been in the news: Signet Jewelers (the parent company of Sterling Jewelers, and its Jared the Galleria of Jewelry, and Kay Jewelers), Tesla, and Uber. Headlines around the world noted accusations associated with, respectively, a class-action arbitration, a lawsuit, and an internal investigation launched after a detailed blog post went viral.

Retaliation Claims Often Accompany Other Accusations

But, regardless of the claims and counter-claims of the three particular cases above, retaliation is sadly a familiar part of many company cultures. Since 2009, retaliation has been the most frequently alleged basis of discrimination, surpassing racial discrimination, according to the EEOC’s August 2016 Enforcement Guidance on Retaliation and Related Issues.

And retaliation accusations are not limited to claims about harassment or unequal treatment. Complaints about vengeful treatment were part of 44.5% of all allegations received by the US Equal Employment Opportunity Commission in fiscal year 2015.

The EEOC notes that retaliation can take many forms, including:

  • Reprimanding the employee or giving a performance evaluation that is lower than it should be.
  • Transferring the employee to a less desirable position.
  • Engaging in verbal or physical abuse.
  • Threatening to make, or actually making, reports to authorities (such as reporting immigration status or contacting the police).
  • Increased scrutiny.
  • Spreading false rumors, treating a family member negatively (for example, canceling a contract with the person’s spouse).
  • Making the person’s work more difficult (for example, punishing an employee for an equal-employment complaint by purposefully changing his or her work schedule to conflict with family responsibilities).

How Companies Can Get Their Training Right

Nearly three quarters (73% ) of companies’ compliance and ethics programs train managers on detecting and preventing retaliation, and for good reason as there are clear business advantages to having a strong ethical culture. Yet the fear of retaliation still tends to be the most common reason for employees not to report observed misconduct, according to CEB surveys of over 160,000 employees from 153 companies across the globe (see chart 1).

Compliance and ethics teams should measure the effectiveness of their training, and then figure out what to do as a consequence by asking the following questions.

  1. Are your functional leaders or managers trained to spot retaliation?
  2. Do you just train new-to-role managers? Or do you provide continuing education for employees who have been managers for a while?
  3. Can your managers define retaliation?
  4. Can your HR generalists define retaliation?
  5. Do your managers and HR generalists know whom to report to when they see signs or behaviors of retaliation?
  6. Do you give examples to show employees what retaliation looks like in addition to telling them that it’s prohibited?

Chart 1: Non-reporting of observed misconduct because of fear of retaliation  Percentage of respondents, 2010-2015*; n=153 (companies), 161,966 (employees)  Source: CEB RiskClarity™ Surveys

* – Employees who indicated they did not report observed misconduct were asked why they did not report the misconduct. Multiple responses were permitted.


Monitoring Retaliation

The best way for senior managers to signal to employees that their company takes retaliation concerns seriously is to have a clear plan to respond to possible cases. Compliance and ethics teams should ask the following questions to assess their program’s action plan.

  1. Who investigates retaliation cases?
  2. When allegations of retaliation are made with another case type (e.g. harassment), is that investigated as one case or as separate cases?
  3. When someone makes a substantiated allegation against their manager/someone more senior, do you have a plan for what happens next?
  4. How do you identify and track these retaliation cases? What systems do you have in place?
  5. How do you look for potential retaliation/bias in your employees’ performance reviews?
  6. Do you follow up with employees three to six months after they report retaliation?
  7. Who makes the disciplinary decision in these cases? Who has “veto power?” What teeth does Compliance have?

 

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  • Corporate Integrity

    Learn more about CEB's millions of data points showing why a strong corporate ethical culture is important, and how to go about creating one.

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