Friendly First Advice in the Face of Retaliation
Recently, I’m With Them had an inquiry from someone experiencing retaliation; they were seeking to identify someone who would just point them in the right direction to start. I’m With Them is not a legal resource, and we didn’t know the specifics of the situation, which meant we could only provide broad advice. Still, we thought, “If we were friends, what would we advise?”
Retaliation can come in many forms, sometimes from the original perpetrator who engaged in wrongdoing, sometimes by colleagues, sometimes by management. Examples include:
- deprecatory remarks, “jokes” or shunning,
- changes in work scope:
- having work reassigned to others,
- not receiving assignments that previously came your way,
- being given too much work so as to induce failure,
- negative reviews when previous reviews were mostly positive,
- demotions, unwanted transfers or compensation reductions,
- outright dismissal.
Regardless, the impact can be a renewed sense of isolation.
To start addressing retaliation, you want to ensure you are well-informed about different perspectives specific to your unique situation. We recommend you re-read your company’s Code of Conduct (often called a Code of Ethics). Larger companies often have information in their Code of Conduct expressing they don’t tolerate retaliation or describing how they deal with it.
Next, re-read your employment agreement for anything that addresses reporting ethical violations and/or mandatory arbitration. A mandatory arbitration clause could prevent you from taking a case to court. At the same time, sometimes companies make changes to their employment agreements without revising individual agreements, so your agreement may be out of date; you’ll want to identify if your company has eliminated mandatory arbitration and for what circumstances it has done so. The Code of Conduct and employment agreement will give you a better (but imperfect and likely ambiguous) idea of how the organization and management will view the retaliation, and how you might be restricted in responding.
Next, create a written record supporting your case, organized into dates and rough times of events, including your memories of conversations. Do not audio record conversations with others without their approval, which could undermine your case. Be sure that you keep (legally obtained) copies of documents describing your reporting and retaliation, such as texts, images, and emails. Organizing this information helps you and those trying to help you.
Then, we would recommend you visit:
Workplace Fairness has compiled information about your rights, how to build a case, and how to pursue a case through the justice system or in combination with the government.
Still, sometimes, a person subjected to retaliation doesn’t want to launch a legal case; they just want the retaliation to stop or to have their position reinstated. Either way, we would recommend that you interview employment attorneys; Workplace Fairness also has a search engine for employment attorneys. Many attorneys will give you 10-15 minutes of free advice with the expectation that you might hire them afterwards. In some cases, a single letter from your attorney to your employer may help you get better attention from appropriate powers and stop the retaliation.
If the retaliation against you was in response to your reporting sexual misconduct, it’s also possible Times Up Legal Defense Fund might have some advice.
Depending on what happened, there may be statutes of limitations which vary by state, so acting quickly can be important. For this reason, if your reporting involved discrimination or violations of equal employment (LGBTQIA discrimination, sexual harassment, etc.) — as opposed to reporting financial fraud—ask the attorneys whether you should file with the Equal Employment Opportunity Commission. If illegal activity was involved and the statute of limitations is met, the EEOC may be able to take action, regardless of the arbitration clause.
If you are working for the government, a host of additional regulations and statutes of limitations come into play, and you would be wise to seek legal counsel.
If you work for a publicly held company, you should also ask the attorneys about advantages/disadvantages of contacting a company’s 1-800 ethics violations reporting hotline. The problem with using the 1-800 hotline (or its parallel website) to report retaliation would lie in any ambiguities, which work to the employer’s advantage. If you believe upper management would side with the retaliators, this would not be your best option.
Retaliation is a particularly painful experience as it creates additional anxiety and even trauma on top of experiences that may already have involved anxiety, trepidation and/or trauma. Knowing how tight the support is on your side and knowing what you want the outcome to be will help to give you the confidence to weather this storm.
Questions to Ask an Employment Lawyer When Facing Retaliation
• Would this be better handled as a lawsuit or negotiating with the organization?
- What are the costs/benefits of either?
• Given the statute of limitations, experiences and documentation, what would be reasons to go to the EEOC?
- If so, what are the advantages and disadvantages of doing so?
• If I just want the retaliation to stop, what would be the advantages/disadvantages to using the 1-800 hotline or other internal mechanism for reporting the retaliation?
• What would you recommend as next steps?
• What should I expect would happen after those next steps?
• How do you bill and how much do you charge?
To compare qualities and experiences of different attorneys, we recommend the following list of questions developed by Wentzel Fenton Cabassa:
I’m With Them is a 501(c)(3) nonprofit dedicated to reducing work-related sexual misconduct. The I’m With Them website connects victims and survivors who share the same perpetrator, empowering them to take coordinated action. Follow us on social media at @ImWithThemTOO