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HR Handled Right

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Most employers associate workplace revenge with workplace violence. We’ve all read the horror stories of the disgruntled employee who pays back his manager for real or imagined wrongs. Other forms of workplace revenge, such as retaliation for filing harassment or discrimination complaints, are just starting to get the same recognition.

Apparently, this form of revenge is a common occurrence; the number of retaliation charges has nearly doubled over the last eight years and more than 27% of all harassment and discrimination claims currently filed contain a claim for retaliation. In this article, we’ll take a look at the law and psychology behind retaliation at work and what HR can do to prevent it.

From a legal perspective, retaliation is any adverse action that is taken against an employee because he or she complained about harassment or discrimination. Such actions can include discipline, firing, exclusion, salary reduction, a change in job assignment, or negative performance evaluation. It can also include hostile behavior or attitudes – from a manager or co-worker – towards the complaining employee.

In the United States, most employees do not have a formal employment contract. They are considered at-will employees, meaning that they can be fired at any time for just about any reason – except for engaging in a protected activity. However, written employment agreement or not, employees and employers develop psychological contracts with each other.

These are the unwritten ground rules, assumptions and expectations that govern an employee’s working relationship with the employer. And, when this contract is broken, the employee – or employer – feels the same sense of betrayal as if a formal agreement had been violated – and the same desire for revenge.

Most psychological work contracts are harmless. For example, there is the unspoken expectation among employees that they will get fair treatment for a fair day’s work. However, in some workplaces, the ‘psychological contract’, communicated through the corporate culture, is abusive. In heavily male-dominated industries, the unspoken rule in some companies has been that male employees have a higher status and employed women were viewed either as outcasts – taking bread away from a man’s table – or second-class – deserving of abusive treatment in exchange for being admitted into the ‘men’s club’. In this psychological environment, complaints about unfair or abusive treatment are likely to viewed as betrayal and it is this sense of betrayal that most often leads to revenge or retaliation.

The solution to a retaliation-prone environment is to change the psychological contract. In the United States, for instance, many companies are developing corporate ethics programs that communicate consistent – and ethical – behavioral expectations through company policies, procedures and training. Not only are new hires programmed with these corporate values, the behaviors are incorporated into promotion criteria and performance evaluations. It is much harder for retaliation to be encouraged, or even tolerated, in a corporate culture that promotes respect and cooperation.

Although retaliation includes any action that an employer takes with malice or intent to stop the employee from complaining, it can also include actions taken with the best of intentions if they have a negative impact.

Consider this scenario: Manager X receives a sexual harassment complaint from Employee Z. Because of the complaint, manager X decides to discontinue weekly pattern of lunching with his employees on Friday. While out at lunch, however, he runs into several of his employees, who join him at his table. Unfortunately, employee Z happens to be at the same local restaurant, Sees her colleagues with manager X, and decides he is punishing her for complaining by excluding her from their Friday lunch ritual.

Or, for example:

  • An employee’s newly assigned hours significantly interfere with his child care arrangements even though the hours were changed so he wouldn’t have to interface with another employee he previously complained about.
  • An employee is reassigned to another department after she complains about sexist comments. However, the new department doesn’t have the same decision-making authority and she perceives that her promotion opportunities are now limited.
  • A manager doesn’t spend as much time with an employee subsequent to her sexual harassment complaint because he senses that she is embarrassed by the personal information she disclosed to him. However, she is now denied the valuable mentoring she had received.

Obviously, the big problem with the scenarios above is the lack of input from the employee. In each case, the manager made assumptions about what was best for the employee without, in fact, checking this out beforehand. While discipline for offensive behavior should always be based on the frequency and severity of the behavior – as opposed to the wishes of the victim – any action that directly impacts the complainant should be discussed and agreed upon beforehand.

One of the best ways to prevent unintentional retaliation is to teach your managers when, and how, to switch gears. Think of your managers conversing with their employees on a daily basis. They give informal feedback, express feelings and opinions, and engage in various and sundry managerial tasks. Suddenly, an employee complains of harassment. That very same manager might make the very same statement s/he would on any other day – with very different results. For example, a puzzled attempt to explain an offending employee’s behavior can be seen as minimizing a complaint or, worse, defending the harasser.

The ‘communication style’ required for managers acting as corporate representatives is very different to that needed for many other management activities. If managers don’t understand the difference, they can create liability for themselves as well as for the company. Harassment/discrimination prevention for managers should always take place separately from employee training and should include specific training on how to respond sensitively as a corporate representative should an employee complain of offensive behavior.

It is not retaliation to discipline a problem employee even if s/he has complained of offensive behavior. An employee who has been insubordinate, chronically late, or threatening can and should be disciplined. At the same time, it is critical for managers to understand the sensitivity of the situation and to be prepared to defend their disciplinary action with strong, supporting evidence, including prior warnings that have been documented.

Managers should also have a checklist like the one below to ensure that discipline is appropriate to the situation and to help minimize the effectiveness of a retaliation claim should one occur:

  • There is factual support for the discipline.
  • The conduct has not been previously condoned and/or ignored.
  • Others who have engaged in the same behavior have received the same discipline.
  • The considered discipline is consistent with your progressive discipline policy.

Sexual harassment complaints often heighten feelings of distress and can easily create adversarial attitudes. Under these conditions, any interactions between parties in a grievance can be perceived asretaliatory or ill-wil ( workplace revenge ).

While many managers understand the legal aspects of harassment and discrimination, their training rarely provides information on the psychology of the person complaining. Yet, this information could provide valuable insight into the communication style that is most likely to help resolve the complaint and prevent a misunderstanding or mistake from turning into a retaliation claim.

The English philosopher Francis Bacon once said: ‘A man that studieth revenge keeps his own wounds green.’ From a psychological standpoint, revenge takes energy and keeps the avenger focused on the past rather than the future. From a legal standpoint retaliation does more than keep wounds green, it can do the same to a plaintiff’s purse.

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