Retaliation
Organizations are strengthened by transforming from a mindset that sees reporting as harmful to an organization to one that sees reporting as benefitting the organization by fostering accountability. Key aspects of cultivating this culture include ensuring that individuals who report concerns feel supported and do not fear retaliation, and providing a way for those who believe they are facing retaliation to seek assistance. Retaliation must be listed as one of the prohibited forms of conduct at your organization.
Defining Our Terms
Retaliation is the imposition of negative consequences on someone who has reported, assisted in the investigation of, or otherwise taken action to identify or address prohibited behavior. Prohibiting retaliation is central to building a safe and respectful organizational culture.
Protection against retaliation extends to everyone participating in a complaint: the complainant, the witnesses, those conducting the investigation, and those deciding how to address misconduct. Importantly, when related to a complaint, retaliation is independent of the outcome of an investigation. If someone reports conduct because they believe it is a violation of policy or law, but an investigation finds otherwise, the complainant, witnesses, and others involved are still protected from reprisal.
Examples of Retaliation
Retaliation can be committed by a supervisor, a peer, or other party. Firing, demoting, or taking other adverse employment actions for reporting harassment or discrimination is retaliation, but retaliation can take other forms as well, such as exclusion, hostile treatment, or withholding of essential information. Individuals who file reports of harassment or discrimination may have experienced this prohibted conduct over months or years, living with its negative effects on their well being. This in turn may affect workplace performance and include poor attendance, missing deadlines, and inferior work quality, especially when the individual engaging in the prohibited conduct is someone they must collaborate with on their work. Because of this possibility, any corrective or adverse actions must be carefully considered to ensure that they are not in any way retaliatory.
The following examples may be incorporated into your Policy to clarify the concept of retaliation. While not all of these would meet the legal standard for retaliation, they should nevertheless be included in a strong anti-retaliatory Policy. These behaviors are retaliatory if they occur because someone reported, assisted in the investigation of, or otherwise took action to identify or address prohibited behavior.
Tangible, Unwarranted Adverse Employment Actions
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- Work-related threats, warnings, or reprimands, including negative or lowered evaluations
- Transfers to less prestigious or desirable projects or work locations
- Removing supervisory responsibilities
- Denying reasonable requests for accessibility accommodations
- Taking (or threatening to take) a materially adverse action against a close family member, spouse, work associate, or friend
- Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity
Unwarranted Changes in Supervision or Oversight
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- Scrutinizing an individual’s work more closely than that of others without justification
- Creating burdensome reporting requirements not required of others similarly situated
Social Consequences
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- Shunning or ostracizing
- Withholding information necessary a person’s success
- Encouraging others to complain about or make reports about an individual
- Making false reports or sharing unverified second-hand information with media, government authorities, or other communal entities
- Hostile words or actions
Denying Procedural Fairness
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- Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms
Examples of how retaliation may manifest in Jewish organizations, in addition to the above, include:
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- Excluding people from lay leadership or volunteer positions
- Ignoring or dismissing feedback from certain volunteers or members
- Intentionally removing people from email lists, meetings, or other communication channels
- Minimizing someone’s ability to teach or speak at community meetings or forums
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- Excluding people from religious honors such as aliyot (being called to recite a blessing over the Torah) who would normally receive them, or leading services
- Creating barriers for people to celebrate a family simcha (celebration) or observe other lifecycle events
- Withholding membership contrary to existing policies
- Treating family members, including children and grandchildren, unfairly in educational settings
Retaliation can have isolated consequences but can also occur across organizational lines. For example, it might occur when a family brings a complaint against a camp director and then, due to pressure placed on the admissions committee by the camp director, their child is rejected from the local day school. You could account for such a possibility by including language to the effect of “regardless of the source of perceived retaliation, it is prohibited under this policy.”
Considerations
Legal Requirements
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Just as you are legally required to prohibit discriminatory behavior, including harassment, you must also prohibit retaliation against anyone who raises concerns about policy violations. The list of behaviors protected from retaliation is extensive. You can meet the legal requirements in your Policy by stating that retaliation against anyone who raises a concern or makes a complaint, cooperates in an investigation, or participates in the organization’s response to complaints or investigative findings in good faith is strictly prohibited. Enumerating illustrative examples, both overt and subtle, is helpful in educating your Policy’s readers. Many organizations also note in this section that making intentionally false or malicious complaints is prohibited.
Organizational Values
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The examples in your Policy should be relevant to your organization’s work, mission, and vision statements, and consistent with the decisions you’ve made previously in your Policy. For example, if you have included donors, members, volunteers, or others in your anti-harassment Policy, then they need to be protected from retaliation. If you have included other forms of misconduct, such as bullying, reporting such misconduct must be protected from retaliation as well.
Capacity
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Of all the forms of prohibited conduct, retaliation can be the easiest to miss. Everyone agrees in theory that retaliation should be prohibited, but training is often necessary to recognize retaliatory behavior. While such training requires time and money, it enables organizations to recognize the subtle ways in which retaliation may manifest and is therefore worth the investment.
Drafting
Now that you have a basic understanding of retaliation, the next step is to draft your Policy’s prohibition against retaliation.
The sample language below includes the key components of such a Policy:
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- A clear definition of retaliation with examples;
- An explanation that protection against retaliation extends to everyone participating in a complaint’s reporting and handling process (e.g., witnesses) not just the individual who initiates the complaint;
- The consequences for retaliatory behavior;
- The commitment of the organization not to engage in retaliation if a complaint is filed outside of the organization (e.g. EEOC, state human rights commissions, OSHA);
Words in black reflect federal law. Words in blue reflect additions that are required in some states and jurisdictions. Even where not required by law, we encourage inclusion of these components in your policy.
To download this sample language into an editable Word document, click here: