Co-Worker Retaliation: Is it Illegal?
Author Name: Jim McKay
Posted: 01-14-2018 05:42 AM
Synopsis: Search for information on retaliation and you will get 100s of websites describing retaliation perpetrated by supervisors and managers, however almost nothing about co-worker retaliation. However, co-worker retaliation does occur and is illegal when several conditions are met. This article will explain the law and in what situations non-management co-workers can commit illegal retaliation.
Most human resources professionals understand retaliation. Illegal retaliation occurs when managers or supervisors punish subordinate employees for filing or participating in a harassment claim with discipline, bullying or with job-related decisions that would "dissuade a reasonable worker from making or supporting a charge of discrimination". This definition has been ingrained into the head of experienced HR executives. However, what isn’t talked about much is co-worker retaliation?
What happens if a co-worker who is charged with a harassment complaint retaliates against the complainant or witnesses in that claim? Coworkers don’t have the power to apply discipline or job-related assignments and duties, but they certainly have the power to commit further harassment or bully the complainant. For instance, a co-worker accused of harassment could sabotage a complainant’s work or intimidate a witness physically or through social media, email or text message. A coworker could use gossip to defame the complainant or could vandalize personal property. The list goes on and on.
Fortunately, the courts have ruled on coworker retaliation in the case of Hawkins v. Anheuser-Busch, Inc. In this case, a worker who was accused of harassment took extreme measures such as death threats and arson to intimidate persons involved in the case. Anheuser Busch had knowledge of these acts and an anonymous complaint of the retaliation but did nothing to investigate. The court ruled in favor of the plaintiff and established guidelines about when illegal retaliation could be perpetrated by a co-worker.
- The retaliatory acts by the coworker must be sufficiently severe that they would "dissuade a reasonable worker from making or supporting a charge of discrimination"
- The employer, managers or supervisors knew or should have known that the retaliation occurred.
- The employer condoned, ignored or encouraged the retaliation and or did nothing or very little about stopping it.
To put it simply, if the employer, managers or supervisors knew or should have known about the retaliation and did very little or nothing to stop it, there is a legitimate case of illegal retaliation under federal law.
Retaliation can be perpetrated by anyone in the workplace including coworkers who do not serve in management or supervisory positions. Organizations must make it crystal clear in their policies, their training programs and their actions that retaliation is illegal and will not be tolerated at work. All employees should be encouraged to report instances of retaliation against themselves and their coworkers.
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