One of the trickiest problems for any organization to prevent is retaliation after an employee reports misconduct, whether or not a report was substantiated in subsequent investigation. Retaliation also crosses functions within an organization—ethics and compliance, internal investigations, and human resources—in a way that can make it challenging to single out who ought to be responsible for identifying, responding to, or preventing it. In this article, I explore what the data from our Ethical ‘Culture Quotient’ surveys for leading companies tells us about the nature of retaliation, and what tools companies have to measure and prevent it.

Erica Salmon Byrne speaks at the 2019 Global Ethics Summit in New York.

In the Eye of the Beholder?

There is a very tricky gap between the law’s definition of retaliation, or “materially adverse” actions, and the much broader set of actions (or inactions) that employees might interpret as retaliation. Although the Equal Employment Opportunity Commission (EEOC) has been trending towards a broader interpretation of retaliation, there still may be many ways an individual could retaliate that wouldn’t be illegal, but would certainly harm culture, damage morale, and undermine employees’ confidence in organizational justice.

For example, it would be obviously retaliatory for a manager to demote Janet, reduce her hours, or take her off of key projects after she reported the manager for sexist comments. However, what if that manager denied Janet’s requests to work from home? Or gave her undesirable (but necessary) roles in new projects? These actions might be more prima facie neutral, but in context could be interpreted by Janet or her colleagues as brazen retaliation.

These kinds of circumstantial considerations are probably why retaliation is among the most common kinds of misconduct employees witness. Among the more than 750,000 respondents to our Ethical Culture and Perceptions Survey, 28% of employees claim to have witnessed retaliation or intimidation, one of the most-reported forms of misconduct. Retaliation is a widespread problem in many organizations, and it is nearly impossible to identify without specifically asking about it.

Related BELA Resources

The Member Hub for the Business Ethics Leadership Alliance contains a number of resources and examples of how member companies communicate effectively about retaliation.

Act Fast!

Another challenge for companies seeking to prevent retaliation is time. A recent survey by the Ethics & Compliance Initiative (ECI) found that of employees who reported experiencing retaliation, 72% said that it occurred within three weeks of their initial report. Given the sometimes-lumbering nature of corporate bureaucracies, that implies most retaliation probably occurs long before the investigation into the initial report has closed, or even properly begun.

Given this brief window, companies whose attempts to prevent or mitigate retaliation after a complaint is filed, are fighting a losing battle. There simply isn’t time. Instead, companies must be proactive in how they train managers before a matter arises, and must be vigilant about measuring for signs of a culture of retaliation.

Train, Listen, Learn, Improve

Because retaliation can be slippery to define and usually happens quickly, the smartest companies will have trained their managers about how to properly deal with reporters in advance, and will ask about retaliation in ongoing assessments of corporate culture.

Why managers? Our research indicates that when employees reported observed misconduct, 60 percent did so to their direct supervisor; just 22 percent indicated they used the compliance helpline to report a concern. The obvious exposure point for organizations is ensuring managers are fully prepared to handle open-door reports – and managers of course are in the prime position to engage in the kind of conduct employees most often cite as retaliatory, even if it doesn’t fit the definition of retaliation under the law.

Manager training must attempt to put managers in the employees’ mindset, and prepare them to interact with an employee who has filed a report, and will likely be on the lookout for signs of retaliation. Any actions the manager takes will be read through that lens – and good training will talk about the things “around the edges” that employees will read as inappropriate. The best training I’ve seen actually pulls out employee examples so that managers can get a real understanding of the range.

Managers must be trained to document their actions carefully in these circumstances, and to look for help. Training might also include ways to confirm their judgment or bring others into decision-making, to ensure managers aren’t making biased decisions and also to increase the appearance of fairness.

Although manager training doesn’t always specifically address ethics and culture issues—the importance of a “speak-up” environment, creating a sense of fairness among reports—training managers to think about such problems in advance greatly increases the chance they will behave appropriately after a report is filed.

Report Back

Our data shows that for employees who indicated they would not be willing to report, fear of retaliation and a lack of faith that corrective action would be taken are first and second in the list of reasons why—they are practically tied. This is one of the areas where demographic analysis is most interesting. For most organizations, there are pockets within the company where those fears tend to be stronger. This is not surprising, considering that only 81 percent of our Culture Quotient respondents agreed that their organization has a policy that prohibits retaliation against someone who makes a report. Likewise, just 77 percent agree disciplinary actions are taken when individuals engage in unethical behavior or misconduct at their company.

Also noteworthy is the fact that Culture Quotient respondents are more likely to strongly agree or agree that their manager supports the organization’s non-retaliation policy than that the organization itself supports the policy (86 percent vs 80 percent, respectively).Collectively, the data suggests that organizations have an opportunity to enhance the level of transparency around reporting, the investigation process, and disciplinary actions.

Measure Again

Companies would do well to include questions about retaliation in their regular ethical culture surveys. Such surveys, which also cover employee perceptions on topics such as leadership ethics and organizational justice, are a key tool to help functions such as human resources or ethics and compliance “take the temperature” of the organization.

What gets measured gets done. Data provides organizations the ability to dig into their employee population and discover where their culture is thriving and where stronger leadership is needed to ensure a more open, cooperative, ethical and productive culture.

About the Author:

Erica Salmon Byrne is the Executive Vice President for Ethisphere, where she has responsibility for the organization’s data and services business and works with Ethisphere’s community of clients to assess ethics and compliance programs and promote best practices across industries. Ms. Salmon Byrne also serves as the Chair of the Business Ethics Leadership Alliance; she works with the BELA community to advance the dialogue around ethics and governance, and deliver practical guidance to ethics and compliance practitioners around the globe.