The Culture of Retaliation

In the past three years, the U S Supreme Court has decided four civil rights cases that have clarified the rights of employees to file retaliation lawsuits – in education, under Title IX, and in employment, under Title VII and the Age Discrimination in Employment Act (ADEA). The decisions confirmed that retaliation is a viable claim in areas where there had been some dispute, and in one case, expanded the scope of actionable behavior.

The Court also narrowed some claims, notably when it shortened the fling period for pay discrimination ( Ledbetter v. Goodyear Tire and Rubber), drawing widespread disappointment in the civil rights community and significant, though as yet unsuccessful, legislative efforts to overturn the decision.

Why expand retaliation protections while narrowing rights in other areas? Though the decisions may seem contradictory on the surface, they reveal a logic that aligns precisely with the purpose of workplace civil rights legislation: to prohibit, with a goal of eliminating, decision-making that is based on someone’s race, sex, age, or other personal characteristics. And the most efficient way to prevent, detect, and correct discrimination is to address instances internally as business problems rather than externally as legal issues. A problem solved inside the organization is one less claim for our clogged judiciary to solve, and it’s quicker, cheaper, and less intrusive to the business than a case prosecuted in court.

Yet despite the benefits of having issues raised and resolved internally, retaliation claims continue to rise. According to EEOC statistics, annual retaliation claims have increased from 18,198 in FY1997 to 26,663 in FY2007. This dramatic growth in retaliation claims is fairly unique: except for an uptick over the past year or so, other discrimination charges have generally decreased or risen at a much slower pace.

When you consider human nature, this trend is not all that surprising. It’s common to resent criticism, and the more serious the criticism, the greater the resentment. Accusing a leader or organization of discrimination is both serious and personal. The natural reaction is to retaliate – defined by the law as an adverse action such as demotion, termination, ostracism – as a means to punish the complainer and say to others, ‘Keep quiet or this could happen to you. ’ Adding legal protections will make it easier for people to sue and win if they’re retaliated against, but it won’t address the broader issue, that complaints should be raised and resolved internally rather than through the courts for business as well as legal reasons.

And ultimately, the intent of these decisions – to reduce retaliation – will have to resonate from a business perspective. It’s not just about what systems we need to set up or whether we can win a case if we’re sued. The question is how do we change our environment so we can find out about problems sooner rather than later?

Avoiding retaliation is about values, leadership, and daily behavior. As we’ve seen with similar workplace issues, culture change, not just legal compliance, is necessary to build an open, welcoming environment for concerns. This entails: consistency and accountability , welcoming dissent and face-to-face skills.

Organizations committed to open communication must demonstrate that their commitment extends to all issues, not just selected or inconsequential ones. Further to this, leaders at all levels must welcome dispute – publicly, in meetings, and in routine interactions. They don’t have to agree on or implement every suggestion, but they must be willing and able to listen in a non-judgmental manner.Leaders must also demonstrate th is willingness to listen through new skills and behaviors they have to develop to remain effective in their roles.

In the past 40 years, the workplace culture has evolved dramatically. These recent decisions, and the thrust of such organizational law enforcement as the US federal sentencing guidelines, are reminding us that continued culture change is vital in terms of eliminating the patterns of conduct that we ultimately recognize (and all too often reward) in retaliation.

Stephen Paskoff is President of ELI, a training firm that helps clients translate values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce risk. Prior to establishing ELI in 1986, Paskoff was a trial attorney for the Equal Employment Opportunity Commission and partner in a management law firm.