Workplace Retaliation vs. Psychological Safety – What can you do?
Question: Dear Stacy, I have had a series of inappropriate and unprofessional incidents happen at my place of employment. I have had no choice but to report them and now I feel that my administrators/supervisors/colleagues are retaliating against me. I love the work that I do and consider myself a hard worker and an empathic employee who enjoys helping others. However, my physical health, my mental health and my overall peace of mind are being affected. I no longer feel psychologically or physically safe. Sometimes it seems surreal that these things have been allowed to happen with no repercussion and I am truly at a loss for what needs to happen next. What would you do in this situation? –Feeling Bulldozed in Baltimore
Answer: Dear Feeling Bulldozed in Baltimore, I am so very sorry to hear that you are feeling unsafe at your place of employment. That can certainly put a damper on your motivation to want to work and to continue your job. I am very glad that you reported the behavior even if you have not gotten the outcome that you had hoped for. No matter what happens, this type of retaliatory behavior by your place of employment is illegal and you may have a case to file with the EEOC. Without knowing all the details, it will be hard to give more detailed steps, but I know that I would not want to continue to work for a place that did not allow for me to feel psychologically or physically safe. We all have enough going on in the world, we don’t need to feel this way at work.
I would probably take all the leave I had and go out on mental health leave (FMLA). I would gather my evidence and consult a lawyer. I am not usually an advocate of our sue-happy culture, but sometimes we need to move to legal ramifications to prove a point. I know I would not want this to happen to others and I would do what I could to prevent it. I do know that bureaucratic red tape and policies can get in the way of the little guy trying to go against these big companies/businesses, but as the worker bees, we need to protect ourselves.
Lisa Guerin, J.D. from Nolo.com states, “Most people know that laws exist to protect employees from discrimination and harassment. However, many don’t know these laws also protect employees from retaliation. That means employers cannot punish employees for making discrimination or harassment complaints or participating in workplace investigations. And punishment doesn’t just mean firing or demotion: It can include other negative employment actions, from being denied a raise or transfer to a more desirable position to missing out on training or mentoring opportunities.”
So What Is Workplace Retaliation? Lisa Guerin, J.D. from Nolo.com states, “Retaliation occurs when an employer punishes an employee for engaging in legally protected activity. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. But retaliation can also be more subtle. Sometimes it’s clear that an employer’s action is negative — for instance, when an employee is fired. But sometimes it’s not. In those cases, according to the U.S. Supreme Court, you must consider the circumstances of the situation. For example, a change in job shift may not be objectionable to a lot of employees, but it could be very detrimental to a parent with young children and a less flexible schedule. As long as the employer’s adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.”
Of course most of us have heard of wrongful termination cases, but you don’t usually hear about “subtle workplace retaliation” cases. That is because they can be hard to prove without sound evidence and this could be why most people don’t report it. The other issue that can come up is, states like Maryland are “at will” states and they can fire you for any reason, including “not a good fit.”
With all that said, no matter what, “Federal law protects employees from retaliation when employees complain — either internally or to an outside body like the Equal Employment Opportunity Commission (EEOC) — about workplace discrimination or harassment. That’s true even if the claim turns out to be unfounded, as long as it was made in good faith. The law also protects employees who cooperate in EEOC investigations or serve as witnesses in EEOC investigations or litigation. A recent Supreme Court case confirms that an employee’s participation as a witness in an internal investigation is protected, too. And various federal laws protect other types of activities, such as “whistleblowers” who complain of unsafe working conditions or those who take legally-protected FMLA leave. (For more information, see Nolo’s article Assert Your Safety Rights Without Fear of Retaliation.) In addition, some state laws prohibit employers from retaliating against employees for other reasons — for example, for filing a workers’ compensation claim.”
Lisa Guerin, J.D. suggests that if you suspect this is happening to you then follow these steps:
1. If possible talk to your supervisor or HR representative. If they are the ones retaliating against you, then you may have to go up the chain of command.
2. If they are not willing to address the issue, then you should take your concerns to the Equal Employment Opportunity Commission (EEOC) or your state’s fair employment agency.
3. You have to build your retaliation case. You will need to prove a link between your complaint (or other behavior that you believe triggered the retaliation), and the employer’s retaliatory behavior. The more evidence you have to show, the better you can prove your case. “To do this, document the allegedly retaliatory behavior. Also, keep track of historical information prior to when you made your complaint. For example, if your boss claims your performance is poor after you make a complaint, be sure to dig up any email messages or other documents showing that your boss was pleased with your work performance before the complaint.”
4. Consider consulting a lawyer. They can tell you how strong of a case you have and what steps to take next. Check out this resource: How a lawyer evaluates a retaliation case.
5. I am adding this one to the mix. Consult a therapist who can help you process how you are feeling and can help you work through the psychological uncertainty that this situation has caused you.
In researching this topic, the concept of Psychological Safety in the Workplace was front and center. Without this, employees do not feel valued and they are less likely to speak up and share ideas. No matter the field, no matter the workspace, no matter the size of the business, ALL employees should feel safe. According to Center for Creative Leadership, “At work, it’s a shared expectation held by members of a team that teammates will not embarrass, reject, or punish them for sharing ideas, taking risks, or soliciting feedback.”
“Psychological safety at work doesn’t mean that everybody is nice to each other all the time. It means that people feel free to “brainstorm out loud,” voice half-finished thoughts, openly challenge the status quo, share feedback, and work through disagreements together — knowing that leaders value honesty, candor, and truth-telling, and that team members will have one another’s backs. When psychological safety in the workplace is present, people feel comfortable bringing their full, authentic selves to work and are okay with “laying themselves on the line” in front of others. And organizations with psychologically safe work environments — where employees feel free to ask bold questions, share concerns, ask for help, and take calculated risks — are all the better for it.”
I wish you all the best as you muddle through this mire of workplace retaliation. Remember that you can only become stronger from the experience and strive to make future work environments more psychologically safe.
https://www.justice.gov/crt/file/851616/download — Need to copy and paste into your browser
https://www.dol.gov/agencies/whd/retaliation — Need to copy and paste into your browser
https://au.indeed.com/lead/why-psychological-safety-workplace-key-growth-innovation — Need to copy and paste into your browser
https://www.youtube.com/watch?v=Q1_1o5W3C2A — How to Prove Retaliation at Work
https://www.youtube.com/watch?v=4SXhyR5pv4g — Workplace Retaliation Explained | Ask An Employment Lawyer
https://www.youtube.com/watch?v=a3Zf2LIzadw — Workplace Retaliation Law
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