It’s Not Over When It’s Over– Retaliation Matters

Following an investigation that took several months, and created a lot of bad feelings in the workplace, Frank, the manager of the Sales group decided to pull everyone together.

“It’s been a rough winter for all of us, ” said Frank. “A lot of people are feeling badly and we’ve lost a few good people. It’s time to pull together as a team and be positive.”

As a murmur began amongst his team, Frank held up his hand and looked directly at a group sitting together towards the back of the room — the individuals who had filed the complaint that spurred the investigation. He stared directly at them, and his voice became stern.”And let me be clear, right now. There will be no more complaints. If you’ve got a problem, either keep it to yourself or fix it. No complaints. Am I understood? ”

Retaliation? Up until recently, there was ambuiguity about whether or not these kinds of actions were retaliatory. After all, they were just words, and no one had been demoted, fired or had their jobs altered. Doesn’t retaliation mean that the terms and conditions of employment have been affected?

This past summer, the United States Supreme Court heard a claim by Sheila White, a forklift operator for Burlington Northern & Santa Fe Railroad Company.(BNSF) White was the only female in her department, and had complained about harassment by her supervisor. BNSF responded to the complaint by conducting an investigation and then suspending the supervisor for ten days, also requiring him to attend sexual harassment training. The roadmaster, who managed the worksite, informed White of the discipline to her supervisor, and immediately assigned her to a less desirable position, stating that “a more senior man” should have her job since it was less arduous. White filed a complaint of retaliation with the EEOC, and then filed another claiming that she had been placed under surveillance and that the roadmaster was monitoring her daily activities. Several days later, after a disagreement with her supervisor, the roadmaster suspended White without pay for insubordination. She was suspended for 37 days, before an internal grievance process determined that she had not been insubordinate and reinstated her with back pay. White filed a third retaliation charge with the EEOC based on the suspensions.

After the Investigation –Coaching the Respondent

It is widely assumed that when an investigation finds evidence of misconduct that a termination of the “bad actor’s” employment frequently follows. While no hard data is available on the subject, an educated guess based on data that is available suggests that a person found to have violated a harassment policy will more often be disciplined and educated or coached. This is particularly true when the alleged harasser is in a leadership role or brings highly valued skills or knowledge to the organization.

The tendency to retain “good employees with bad judgement” seems to be a reflection of the fact that harassment complaints about such employees tend to involve ongoing conduct of a subtle or generic nature — the “low buzz” of insensitivity coupled with relationship. personality and style issues — rather than the “explosion” of explicit and outrageous conduct. While the latter type of conduct will guide an organization to seriously consider terminating even a highly valued leader or “rainmaker,”, the former is likely to result in the organization attempting to salvage the talents, experience and skills of an otherwise valued employee. This is perhaps in part due to the fact that the organization may have had a significant role in allowing the behaviors, style and relationship issues to develop in the first place!

Before the Investigation — The Importance of Intake

People who attend my investigative training are often in for something they did not expect — a lot of time spent on what happens before the decision to investigate is made. The process of “intake” or, literally, taking in the complaint is necessarily and properly decidedly different from investigation, and the quality of the intake will indisputably affect an investigator’s ability to find facts.

Sepler & Associate’s research has found a strong connection between how a complainant is treated when they make their first complaint — to a supervisor, manager, HR person, compliance line or other person — and whether they will ultimately bring a charge or lawsuit against the organization. Not surprisingly, these results arise out of anger, frustration and distrust in the organization’s willingness to, interest in or capability for managing the problem they have described. In essence, charges come when complainants believe they have not been listened to, have not been taken seriously, have been unfairly judged, or the organization has not been open and diligent. A charge is the weapon that a complainant has to tell their employer or educational institution — “if you won’t listen to me, I will find someone to make you.”