Sexual Harassment and Workplace Retaliation: What Employers Should Know

When an employee reports workplace sexual harassment, the employer's responsibility does not end with addressing the initial concern. Employers must also be aware of the potential for retaliation against employees who report concerns, participate in investigations, or support another employee's complaint.

Under federal employment law, retaliation can create a separate legal concern from the original complaint. Establishing clear reporting procedures, training employees and supervisors, and communicating that retaliation is not permitted can help employers respond appropriately when concerns are raised.

Understanding Workplace Retaliation

Retaliation generally involves treating an employee less favorably because the employee engaged in activity protected by employment discrimination laws.

According to the U.S. Equal Employment Opportunity Commission (EEOC), protected activity can include reporting discrimination or harassment, communicating concerns to a supervisor, filing a charge, or participating in an investigation. Employees who provide information during an investigation may also receive protection from retaliation.

Retaliation does not necessarily have to involve termination. Depending on the circumstances, actions such as demotion, undesirable reassignment, increased scrutiny, negative treatment, or other conduct that could discourage a reasonable employee from raising concerns may create retaliation concerns.

Why Retaliation Concerns Can Arise

Workplace complaints can create tension among employees, supervisors, and managers. A supervisor may feel frustrated by a complaint, while coworkers may have concerns about being involved in an investigation.

These reactions can create risks if an employee who reported a concern or participated in an investigation begins experiencing unfavorable treatment.

Employers should therefore make it clear that employees are expected to continue treating coworkers professionally throughout the complaint and investigation process. Managers should also understand that employment decisions involving an employee who recently engaged in protected activity should be handled carefully and based on legitimate, documented reasons.

Employees Who Participate in Investigations

Employees do not have to be the person who originally reported the concern to potentially be protected from retaliation.

For example, an employee who provides information during an internal investigation may be engaging in protected activity. Witnesses and other employees involved in an investigation should understand that participating in the process should not result in punishment or unfavorable treatment.

This makes employee awareness an important part of an employer's prevention efforts.

Employees should know:

• Where to report workplace concerns
• Who they can speak with when they have questions
• That participation in an investigation may be protected
• That retaliation is prohibited
• How to raise concerns about possible retaliation

Supervisors Have an Important Responsibility

Supervisors are often the first people employees approach with workplace concerns. Their response can influence whether an employee feels comfortable using established reporting procedures.

Supervisors should understand how to receive a complaint without making assumptions, discouraging the employee from reporting, or attempting to conduct an informal investigation on their own.

They should also understand that workplace decisions involving an employee who has made a complaint need to be handled consistently and appropriately. The EEOC recommends that employers train managers and supervisors on anti-retaliation policies and consider monitoring for concerns about potential or perceived retaliation during an EEO matter.

Creating Clear Anti-Retaliation Expectations

Employers can help reduce confusion by clearly communicating their expectations before concerns arise.

Effective workplace policies and training can explain:

• What retaliation means
• Examples of conduct that may raise retaliation concerns
• How employees can report concerns
• How supervisors should respond to complaints
• Why investigation participants should be treated professionally
• The importance of consistent workplace decisions

Employers should also respond promptly and appropriately when employees raise concerns about possible retaliation.

The Importance of Sexual Harassment Training

Sexual Harassment Training | TAP Series® can help employees and supervisors develop greater awareness of workplace expectations, reporting procedures, and respectful professional conduct. 

Training can address more than recognizing inappropriate conduct. It can also help employees understand where to report concerns and why employees who raise concerns or participate in investigations should not be subjected to retaliation.

For supervisors, training can reinforce responsibilities related to receiving complaints, following reporting procedures, maintaining professionalism, and understanding anti-retaliation expectations.

Key Takeaways for Employers

Employers should consider the following practices:

• Clearly communicate that retaliation is prohibited.
• Make reporting procedures easy for employees to understand.
• Train supervisors on how to respond to workplace concerns.
• Explain that employees participating in investigations may have legal protections.
• Treat employees consistently when making employment decisions.
• Address concerns about possible retaliation promptly.
• Reinforce expectations for respectful workplace conduct throughout an investigation.

Broader Implications for Employers

A workplace complaint can require employers to address more than the conduct described in the initial report. The response to the complaint can also affect employee trust and create additional legal considerations.

A clear reporting process, consistent management practices, and employee awareness can help employers establish expectations around both workplace conduct and retaliation. Employers should also remember that retaliation protections are fact-specific, and employment decisions should be evaluated based on the circumstances of each situation.

Conclusion

Understanding the relationship between sexual harassment complaints and workplace retaliation is an important part of an employer's broader prevention strategy. Employees should know where to report concerns, while supervisors should understand how to respond appropriately and avoid conduct that could discourage employees from raising legitimate concerns.

Regular training can reinforce awareness of reporting procedures, workplace respect, supervisor responsibilities, and anti-retaliation expectations, helping employees better understand their role in maintaining a professional workplace.