By: Kim Strom, Director of the UNC-Chapel Hill Office of Ethics and Policy and the School of Social Work’s Smith P. Theimann Jr. Distinguished Professor of Ethics and Professional Practice
Conversations about retaliation are part of the daily life here in the Ethics and Policy Office. Through the policy lens, retaliation risks and protections arise in many University policies: Whistleblower Policy; Institutional Conflict of Interest Policy; Misuse of University Resources Policy; Workplace Violence Policy; Prohibited Discrimination, Harassment and Related Misconduct Policy; and the Religious Accommodation Policy to name a few. Other relevant policies are included on the Equal Opportunity and Compliance Office (EOC) website. As for ethics, the possibility of retaliation arises whenever people wrestle with speaking up about workplace problems, misconduct, or microaggressions. Even when reports are filed anonymously through Carolina Ethics Line (CEL), the prospect of discovery and retaliation loom large. Unsurprisingly, some of CEL reporters who choose to give their names still acknowledge the risk of retaliation as they explain their situation and the decision to make a report.
This month, our intern Sawyer Kohman-Eidem and I took a deeper dive into the phenomenon of retaliation. Below are some of the things we learned.
- “Retaliation” has both legal and conversational connotations. For example, in labor regulations, retaliation occurs when an employer (manager, supervisor, administrator etc.) fires an employee or takes another type of adverse action against an employee for engaging in protected activity1. Adverse actions can affect pay, promotions, performance reviews, and working conditions.
Less formally, retaliation may refer to hostile working conditions in which someone is publicly shamed or defamed, given adverse assignments, or excluded from opportunities that might affect professional advancement. Hostile conditions may constitute prohibited retaliation if they are done in retribution for workers exercising their rights or membership in a protected class. Or they reflect a workplace where people are punished for attitudes or behavior that defy the leadership or violate group norms.
Consider an office environment where an employee is viewed as not fitting in. Maybe the boss just doesn’t like them. Maybe they ask too many questions, refuse to join non-work-related team activities, resist sharing personal information, avoid political discussions, or fail to participate in inside jokes. Do such people have strong integrity and personal boundaries about work-life balance or are they uncooperative poor team players who cannot take direction? Does excluding them from birthday lunches, emerging opportunities, project teams, and stakeholder meetings constitute retaliation? If so, which type?
As you can see from the example, retaliation is at once serious, consequential, complex, and ambiguous.
- Retaliation is consistently the most common complaint type filed with the EEOC, sometimes accounting for over 50% of the complaints.
- While retaliation is predominantly associated with the punitive exercise of power, on occasion workplace retaliation can also refer to acts of sabotage or harm, wherein disaffected employees lash out against co-workers, the employer, or organization.
- There is a difference between retaliation and the fear of retaliation. The fear may be exaggerated or improbable or it may be credible, but in any case, fear of retaliation has the power to intimidate, inhibit, or deter employees from performing their jobs ethically and effectively.
- Retaliation can be difficult to prove. People who have experienced retaliation may simply exit the organization without filing a report or pursuing options for redress, and they will maintain their silence after they have having left, in the name of “not burning bridges”. Even when retaliation is reported, systems are imperfect and evidentiary standards are high.
- Some office cultures operate amid (or in fear of) retaliation. Think of culture as the “personality” of a workplace, unit, or team. Employees who see the company motto as “Dress up. Show up. Shut up” have observed bullying or hostility and have learned to shape their behaviors accordingly.
- Not all responses to worker actions are retaliatory. Let’s say an employee complains about unequal treatment within the team regarding comp time. The supervisor is reprimanded for it and corrects the practice to treat every team member appropriately but is also less friendly to the worker who filed the complaint. The supervisor’s new behavior may be a consequence of speaking up, but in and of itself it is not retaliation.
- In extreme cases, retaliation can be an intentional governance strategy. In these cases, the leader’s chosen style is to make an example of someone to send a message to the group and keep them on their toes.
- Retaliation is expensive. Fear inhibits peak performance. It harms communication and innovation. It affects recruitment and retention. Retaliation creates costly remediation processes and payouts when substantiated. The work of the institution doesn’t get done. And, as one respondent in a study on academic bullying concluded, “students suffer in an organization that is always fighting itself”2.
- The prevalence of retaliation may be discouraging, but it also means that a robust literature exists on the policies and practices that can create fair, accountable, and civil workplace climates3. Leaders set a tone and model the desired culture. Organizational processes encourage accountability. Training educates everyone about rights and protections. Culture emphasizes personal reflection and continuous improvement. Practices support speaking up. Systems are effective and responsive.
- U.S. Department of Labor. (n.d.). “Retaliation.” https://www.dol.gov/agencies/whd/retaliation
- Hollis, L.E. (2012). Bully in the ivory tower. Patricia Berkly, p. 99.
- Shirley, M. (2022, November 16). With retaliation on the rise, how can you maintain a culture of integrity? Corporate Compliance Insights. https://www.corporatecomplianceinsights.com/retaliation-culture-integrity/
The Office of Ethics and Compliance. (2015, June 29). Addressing fear of retaliation among University employees. Pennsylvania State University. https://www.psu.edu/news/story/addressing-fear-retaliation-among-university-employees/
Fear of retaliation in the workplace: Assuaging employees. (2023, January 10). EVERFI, Inc. https://everfi.com/blog/workplace-training/fear-of-retaliation-in-the-workplace/
U.S. Department of Education. (2022, February 11). Retaliation discrimination. https://www2.ed.gov/policy/rights/guid/ocr/retaliationoverview.html
Vault. (n.d.). The trust gap: Expectation vs reality in workplace misconduct & speak up culture. https://vaultplatform.com/the-trust-gap/