Many employees are reluctant to report an ethical wrongdoing or mistreatment by a coworker or supervisor due to fear of retaliation. Unfortunately, these fears are not always unfounded. According to the results of research into EEOC records conducted by the Society of Human Resource Management, about one-third of all discrimination complaints received by the EEOC in 2011 stemmed from retaliation charges. Retaliation has now surpassed racial discrimination as the top reason for filing an EEOC claim.

How can you limit incidents of retaliation in your organization that could potentially lead to penalties or lawsuits? During a recent seminar entitled “Preventing Retaliation with a Speak-Up Culture” presented by the Open Compliance & Ethics Group, a blue ribbon panel of compliance and ethics law experts discussed what constitutes retaliation, what causes it, and how to prevent it by developing a speak-up workplace culture.

Retaliation defined

The U.S. Supreme Court has broadened the definition of retaliation in recent years. In essence, for retaliation to exist, three essential elements must be present. There must be an action that is protected by law or statute, an adverse action must occur, and there must be a causal relationship between the protected and adverse actions. A typical example of unlawful retaliation is firing an employee for filing a discrimination claim against an employer.

It’s important to note that what constitutes an adverse action is open to broad interpretation. Even giving individuals who have made a complaint “the silent treatment” or not inviting them to meetings consisting of subject matter that impacts their job function could be construed as an adverse action, and thus an act of retaliation, if it can be demonstrated that a causal relationship exists.

Reasons for increase in retaliation claims

Why has the number of retaliation claims and lawsuits continued to rise in recent years? A primary reason is that the broadening of the definition of retaliation has led to the passage of laws protecting those who are subjected to retaliatory behavior. Another contributing factor is that many organizations fail to implement an effective incident reporting and management program. Consequently, minor issues that could have been nipped in the bud escalate into serious problems that can lead to retaliatory behavior.

Establishing a culture that encourages employees to speak up

By fostering an environment that encourages employees to report ethical breaches, you can go a long way toward preventing retaliation in your organization. It is imperative that a strong ethical tone is established by top management and is filtered throughout the organization. Leadership must make it clear to employees that it is not only their right, but also their duty, to speak up, and that the company will support them when they do.

By demonstrating that reports of wrongdoing are taken seriously and acting upon them in a timely and appropriate manner, you will encourage employees to report incidents internally instead of utilizing outside sources, which can help prevent retaliation from occurring.

It is also important to have an effective system of checks and balances in place. A mechanism such as an employee hotline should be available for reporting an incident when it occurs, as not all employees will feel comfortable making a report directly to management. A well-defined investigative protocol should be in place to serve as a type of report “triage” and to determine the appropriate steps to be taken. Total transparency is essential to the success of your investigative process, and complainants should be kept in the loop regarding the outcome of your investigation.

Elements of an effective anti-retaliation training program

Your organization can also take an important step toward preventing retaliation by implementing an effective anti-retaliation program, which should be a component of your enterprise-wide compliance program. To be effective, a training program should incorporate all employees, including management and non-management personnel. What constitutes retaliatory behavior should be clearly defined, and special emphasis should be placed on the fact that it is the employees’ obligation to speak up when misconduct occurs.

Regarding a training methodology, select the method that is best suited for your organization. Both live training and online training can be highly effective. Using case studies that are pertinent to your type of organization is a good way to keep participants engaged during training.

Ways to monitor the effectiveness of an anti-retaliation program

It is also imperative that you monitor your anti-retaliation program to ensure it is achieving the desired results. Key information and insight can be gleaned through the use of focus groups, employee surveys, exit interviews, and from counseling and coaching sessions conducted with employees who have engaged in retaliatory behavior. This will help you understand whether your employees know what constitutes retaliation and whether they feel they have been retaliated against. It is also important to closely monitor the behavior between the parties involved in a complaint after it has been reported.