Retaliation: More Common Than You Think
By Susan Walberg, JD MPA CHC
Retaliation is one of my favorite topics, not because I like the act of retaliation (of course!), but because it is so often misunderstood and I think it’s critical to provide education on this issue. No matter where I go, retaliation is relevant, and usually if I give a talk on this subject I will get pulled aside afterwards by someone with a story or question.
Most organizations will state that they have a non-retaliation policy, that there is no retribution for raising a concern. This may be communicated in their Code of Conduct, Employee Handbook, website, policies, or all of the above. And the leaders believe that credo, they don’t tolerate retaliation as an acceptable business practice. The problem is that many of them don’t fully understand all the actions that can be considered retaliation.
Retaliation is any adverse employment-related consequence that arises out of an employee reporting a concern or, alternatively, participating in an audit or investigation of a concern. The complaint can be any of a broad range: fraud and abuse, sexual harassment, discrimination, quality of care concerns, privacy or security violations, etc. Some laws have specific provisions relating to ‘whistleblower’ protections, such as the False Claims Act, which actually provides a portion of the government’s settlement if they pursue the case, and others specify that retaliation for reporting is prohibited.
People generally understand that if you get fired after reporting something, that is likely retaliatory. And many people also know that a poor performance appraisal, in the absence of any concrete performance changes or failure is highly suspect if it is given to someone who has been making complaints.
The challenges, though, come when the retaliation or reaction to a complaint is less clear cut, less documented, and harder to validate. These are often the types of situations where an employee will go to Human Resources or the Compliance Officer and say that they are a victim of a hostile work environment. In those cases it’s important to drill down to find out not only what they mean, what specific actions have been taken, but also what they think triggered the situation.
I’ll give you some examples of types of behaviors that have been found to be retaliatory. One very common one is to start excluding the out-of-favor person from meetings that they have historically attended. This one is a strategy to prevent the ‘trouble maker’ from having an audience or opportunity to air grievances. The ‘leader’ who does this doesn’t usually think they are retaliating, which is important to understand. In their mind, they are just taking steps to make their meeting run smoothly, and to prevent a disruptive person from getting the meeting off track. But this type of exclusion can be considered retaliation, if there is a nexus between protected reporting and the act of barring the individual from their regular duties.
A similar retaliatory act is to take projects or responsibilities away from the employee who complained. By reducing the employee’s role, that individual is not only less able to cause damage by voicing their concerns, but they are also receiving a message about their value. This is one way to help an unwanted employee out the door without actually doing anything overtly ‘retaliatory’. There can always be an explanation; this person has too much work, someone else is learning new responsibilities and wants the project, the project is moving to a different department, etc., etc. The net result, however, is that it diminishes this person’s role or authority, especially if more than one responsibility is removed or it is a very visible/important project.
If the complaining individual is in a supervisory role, their bosses can undermine them by having the lower-level staff and others circumvent that manager. For instance, a supervisor goes to Human Resources and complains that a physician was sexually harassing them in the O.R. The physician is highly valued and leadership is concerned that he or she could leave if one of the employees starts making accusations. Employees of that supervisor will react to the conflict as well (nothing ever remains a secret), creating a toxic work environment, perhaps taking sides. Rather than working through the challenging behavior and conflict issues, leadership might tell the staff or physicians just to go around that supervisor. As in other examples, this is not done to deliberately retaliate, instead it is considered the ‘easy way’ to smooth over a difficult situation and avoid drama. Or so they think.
The last example is changing a person’s actual working conditions. For instance a schedule change, or moving a person’s office to an area with far less traffic and interaction. This is another way to remove the individual from the opportunity to share their concerns, talk with coworkers about things that have happened, or tell colleagues that they complained and were then punished.
The common element in all of these types of retaliation is that they serve to remove the person with the complaint from opportunities to interact with others. As I said before, this is usually not believed to be retaliation by the person doing it, it is done as a way to keep things running smoothly and avoid conflict. People who engage in this type of retribution often see themselves as problem solvers and good leaders, because they prevent disruptions and strive for efficiency by shutting down dissent.
So, what do you do if you get a complaint from an employee about a ‘hostile work environment’, ‘toxic culture’, or retaliation? If you are a compliance officer, or have a similar role, the first thing to do is explore the facts. Find out what really started the problem, in their opinion. It may be at that point you learn what the real issue is, and it may be far bigger than this one employee’s retaliation claim. Maybe there is a culture of discrimination in one department and employees are afraid to speak up, or perhaps there is an ongoing compliance problem, such as lack of appropriate supervision or continuous security lapses. It’s important not to dismiss this person’s concerns or send them to someone else until you hear what the potential problems may be. If, for instance, the employee says they have a hostile work environment, many people might send that employee straight to Human Resources. That could be the right course of action, but not until you find out why they feel targeted. Then see if there is a compliance issue that would be within your purview. And regardless of the underlying issue, you will want to coordinate with the Human Resources person, just to let them know what the issue is and what you’ve already done, and to determine who will take lead if an investigation is necessary.
Lastly, it’s also important to partner with your leadership if one of these scenarios lands in your lap. It’s an valuable opportunity to educate the leadership team, if, in fact, retaliation has been happening. When I’ve had these situations come up in the past, I’ve asked to talk to the executive or leadership team to just present the ‘case study’ and explain about the various versions of retaliation. You will find, most likely, that many leaders have no idea that these behaviors can cost the company, not to mention the impact on the employee. And if one employee comes forward, you know there are probably several others who have not. The other part of that training is to point out that sometimes the employees labeled as ‘constant complainers’ are the ones who raise legitimate concerns, so even if the leader is busy or find the employee generally aggravating, they need to take a minute and listen to concerns and then follow-up to verify the accuracy of the complaint. Obviously, the worst case scenario is when an employee raises a legitimate concern and not only is the concern ignored but the employee is punished. Leaders need to fully understand the impact their actions can have in this instance.
In summary, it’s important to understand the full range of behaviors that can constitute retaliation, and always listen to employees who raise these types of concerns, even if they may not seem credible initially. The employee’s next stop, if they aren’t being heard, may be outside counsel or the government, so make sure your leaders and management understand this. Many whistle-blowers get to that point by way of the scenarios I’ve described here, and it isn’t a pleasant experience for them or for the company at the other end. It’s also usually avoidable, so let your leaders know and keep your ears open for these types of complaints. In the long run you could be helping both the employee and the company in a significant way.