“Of all the liars in the world, sometimes the worst are your own fears.”
– Rudyard Kipling (1865-1936)
U.S. Supreme Court Expands Protections for Employees
Who Are Victims of Retaliation
Important Intro Note: On May 27, 2008, the United States Supreme Court issued decisions in two related cases that raised this fundamental question: When Congress granted employees rights to fair employment practices, did Congress also mean to grant employees protections from retaliation from employers for exercising those rights? The Supreme Court’s answer, to the surprise of many “Court-watchers,” was a resounding “YES.” It appears that, when it comes to the protection of fundamental, individual rights, “very conservative” and “very liberal” can sometimes mean the same thing.
ACTUAL CASE HISTORY: Alexa, 49, was Managing Director, Human Resources, for a large magazine publishing firm with 6,000 employees worldwide. She’d worked in the Human Resources field for almost 25 years, and really “knew her stuff.” She’d been in her present position for six years. If a subject was part of what people called “human resources,” Alexa had “seen it, done it, and lived it.” But what she was experiencing when she contacted our office was something she’d never experienced before.
As part of her regular duties, Alexa was responsible for overseeing investigations into allegations of illegal discrimination. Over time, she had prepared detailed procedures to handle such complaints, each procedure carefully designed to ensure objectivity, transparency and accuracy of findings. Great care had gone into designing and implementing these procedures; Alexa was very proud of them.
Over the six weeks prior to Alexa coming to our office, the Human Resources Dept. had received three separate complaints of discrimination from the executive support staff. One complaint alleged a failure to promote based on race, one complaint alleged a denial of equal compensation based on gender, and the third complaint alleged hostility based on age. The one thing they all had in common was the person complained about: Arnold, the company’s Chief Operating Officer, who Alexa, herself, reported to. Though the three near-simultaneous complaints were unusual, Alexa anticipated using the usual company procedures to investigate them. In fact, Alexa reasoned, in cases of complaints against the company’s senior executives, it was more important than ever that Human Resources use the time-tested, objective procedures in place to address these complaints. However . . . others apparently saw it differently.
At the next meeting of the Operating Committee, of which Alexa was a member, she gave her usual summary of accomplishments and goals. Nothing at all unusual took place at the meeting. However, after the meeting Howard, the company’s CEO, asked her to remain a few minutes to go over something he said was “on my mind.” When everyone else had left the room, Howard got right to the point: he had heard of the complaints against Arnold , and he wanted the files sent directly to a corporate lawyer he knew, to personally handle the investigations. Alexa asked why these complaints should be handled differently than all others, and by an attorney with no experience in this field. Howard responded simply, “That is my decision.” Alexa knew the attorney he had in mind: he was a regular golf buddy of Arnold ‘s. Two weeks later, the three files came back. Each contained an identical summary of findings: “No evidence of wrongdoing found. Complainant appears to have lied.”
Alexa was aghast. Not knowing what to do, she turned to the section of the Corporate Policy Book entitled “Reports of Wrongdoing.” As required by company policy, Alexa promptly made arrangements to speak with the company’s General Counsel about the matter. The two of them met the next day. She shared her concerns that the complaints were never truly investigated, that the purported findings were little more than a sham, and that the inexplicable failure to follow company procedures could be used by a smart trial attorney to seriously damage the company’s credibility, finances, and reputation. To her dismay, the General Counsel told her he simply wasn’t interested because “It’s not an issue for me.” Alexa decided she could do no more, and so she dictated a memo to her files on what had transpired.
Within a week, Alexa noticed the changes. First, Arnold became nearly invisible to her, and their was no room on his calendar for their usual weekly “touch base” meetings. Next, she noticed she was not on the attendance list for next month’s Operating Committee meeting. The final straw was the memo she received from Howard expressing concerns about her emotional well-being, and suggesting a leave of absence might be best for her. Alexa had never seen such things before. But like dark clouds on the horizon, indications of trouble they surely were. Only a week later she was told to go home, and her personal effects would be delivered to her the next day. Howard’s email the next day said, simply, “I’ve lost confidence in you.”
Alexa had gone from a trusted and trusting member of the Operating Committee to an outsider and outcast in less than a month. She had resisted impropriety, and then seemed to be making a record of it. Her career and reputation now all seemed at risk, for simply doing the right thing. So strange, but so common.
Fortunately, Alexa retained copies of the complaints, relevant emails, the company policies, her file memo, and meeting attendance lists. With them, we were able to help Alexa successfully negotiate resolution of her claims of retaliation.
LESSON TO LEARN: Retaliation at the office for “saying what needs to be said” and “doing what needs to be done” seems to be a growing phenomenon. Cases of workplace retaliation against those who speak the truth, those who act to halt office illegality, and those who simply resist being victimized themselves, are increasingly commonplace, as evidenced by reports in the newspapers and cases filed in the courts. Fortunately, both judges and juries are increasingly giving protection, recompense and real justice to victims of retaliation in the workplace.
Why is that? We can only speculate. But three changes in the fabric of our society seem to suggest this trend will continue:
First, the great frequency of cases of corporate scandal and wrongdoing has many people – including judges and juries – just plain disgusted. Like many of us, Judges and jury members seem to understand all too well that society needs “stand up people” like never before, and are willing to support them when they do so. In a recent Wall Street Journal it was reported that senior executives of cable giant Cablevision Corporation had agreed to pay back to the shareholders $24 million for padding their own wallets by backdating stock options to themselves. Of course, none of the twelve executives was required to either (a) admit any wrongdoing, or, (b) go to jail.
Second, our Congressional representatives and Senators read the papers, too. More and more, when they write and pass laws giving people rights in the workplace, legislators are wisely inserting provisions into those law that penalize people and companies who seek to deny, frustrate or retaliate against those who exercise those rights and protections. Just as the U.S. Supreme Court did on May 27, 2008, more and more courts are viewing protections against retaliation as urgently needed to maintain adequate levels of public integrity.
Third, employees are becoming more educated about their rights, more sophisticated about using those rights, and thus more willing to stand up for those rights.
The lesson to learn is this: There are more and more protections available to those who have been retaliated against at work, and therefore less and less reason not to stand up for what you believe is right. Is it easy to do? No. Is it without risk? No. Will someone else do it for you? No. As it is in every generation, exercising rights takes effort and courage. But the law is increasingly on employees’ side, ready and available to be called upon, by those willing to make the call.
WHAT YOU CAN DO: If you believe you have been retaliated against for exercising your legal rights, or for standing up for the legal rights of others, here’s seven steps to consider:
1. Review Corporate Policies and Employee Handbooks for “Required Steps.” It is very common these days for companies to have specific procedures you must follow if you believe you have been retaliated against. Look for them on company websites, in corporate policy books, and in employee handbooks. Follow them to the letter: if it says “deadline of 10 days,” don’t send in your complaint on day 11. If it says “send in two copies,” one copy will not suffice. Don’t let sloppiness hurt you. No matter what it says, though, send an extra copy of your complaint to the appropriate person or office by email, to establish proof it was sent, to whom, and when.
2. Gather Copies of Supportive Information and Documentation. In Alexa’s case above, she gathered (a) meeting attendance lists, (b) emails, (c) copies of complaints others had filed, (d) even relevant portions of the company policy book, and took them home. They were incredibly helpful to have when it came time to negotiate a settlement. Without them, we would have had far less leverage. Remember: Alexa was given no time to pack up; they packed up for her. Don’t presume you will later have time or opportunity to assemble proof of what, in fact, transpired.
3. Consider Whether There are Others Who May Be Helpful or Possible Witnesses. Make a list of people at work who you believe might be helpful to your claim, or even be a possible witness, either to the original wrongdoing, or to the retaliation against you. While you should not expect any one to risk his or her job to help you, it can only help you (and your lawyer, if you hire one to help you) to later know who attended certain meetings, who received a copy of a certain letter, who participated in a certain telephone conference call.
4. At the Same Time, To the Extent Possible, Keep Your Concerns Private. Experience teaches that few if any of your colleagues at work truly want to get “involved” with your difficulties, even those who deeply empathize with you. Asking your friends to “stand up” with you might be tempting, but will more probably be disappointing. “Standing Up” or “Speaking Out” are personal decisions. Confide in your family, friends, lawyer and spiritual advisor. Take counsel from them, too. But don’t involve others at work in these matters, unless they truly volunteer for duty, to the extent possible. And remember, too, that not everyone you consider a friend is really on your side.
5. Consult with an Experienced Employment Attorney. It is often said that “Success in life can be measured by how good you are in avoiding doctors and lawyers.” I agree with that sentiment. That being said, I’d never suggest you try to remove your own gall bladder. Those who believe they have been the subject of improper retaliation at work would always be wise to consult with an experienced employment attorney who is well-versed in such matters. The stakes are too high, the risks too potentially long-lasting, and the potential rewards of successful handling of such claims are too significant to “go it alone” on these matters.
6. If You File an Objection, Do It “With Your Fingers.” In order to protect yourself, it’s important to file an objection to retaliatory treatment with whomever the company may designate, but it’s also a good idea to do so with one or more of the following people: (a) your boss, (b) Human Resources, (c) a company Ombudsman, (d) the CEO, or (e) a member of your company’s Board of Directors. Spoken reports, made “With Your Lips,” are not sufficient, as they are capable of being misunderstood, forgotten or mischaracterized. What’s in writing, made “With Your Fingers,” and sent by email, sets a clear, permanent record of what you reported, to whom you reported it, and when. Making a written objection is nearly an absolute must when confronted by retaliation at work.
7. Make Sure You Don’t Mistakenly Engage in What Could Be Considered Extortion. Finally, those who believe they have been retaliated against for standing up or speaking out should not be tempted to offer to make a deal that sounds like this: “I will be silent about what I know only if you pay me.” Though that may seem just like what lawyers do all the time in settling a case, if not done very, very carefully, such a proposal could also be considered the crime of extortion. It’s not easy to set out in this space what, precisely, is the difference between, on the one hand, settling a dispute, and on the other hand, committing extortion. Suffice it to say that expressing, “I will say something about you that will hurt your reputation unless you pay me money” is extortion, a very serious crime, and should never be said or written. On this particular topic, consulting with legal counsel is highly, highly recommended.
If you would like to obtain a “model” memo to help you object to retaliation on the job, [click here].
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues these days requires that you maintain a certain type of vigilance, and be prepared to stand up for yourself. While doing the “right thing” should be encouraged and rewarded, unfortunately it is all too often punished. But the law is now on your side, more than ever.
Always be proactive. Always be creative. Always be persistent. Always be aware. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.