How Is Retaliation Problematic?
Retaliation: What It Is and How It Presents
Because many federal, state, and local laws define and prohibit retaliation, there is not one “legal” definition of the term. However, across the varying laws, retaliation is generally held to occur when an individual experiences an adverse (negative) action or actions as a direct consequence of opposing discrimination, such as by “filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination” (Equal Employment Opportunity Commission, 2015). Under Title VII of the Civil Rights Act of 1964, proving an adverse action under the retaliation framework requires showing that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable [person] from making or supporting a charge of discrimination.’” (Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).3 However, “petty slights” and “minor annoyances” will not raise to the level of an adverse action (Burlington N. & Santa Fe Ry. Co at 68.).
Research shows how retaliation can take on many forms. A 15-year study of 129 claims of retaliation stemming from complaints of sexual harassment showed that retaliatory actions identified by targets included job termination, constructive discharge (when an employee is compelled to resign due to the circumstances), economic loss, verbal and physical aggression, and further sexual harassment (Wendt and Slonaker, 2002). More specifically, there are both formal, official and informal, unofficial types of retaliation (Cortina and Magley, 2003; De Maria and Jan, 1997; Lewis and Vandekerckhove, 2018). Formal, official types of retaliation include adverse actions that negatively affect a target’s job or career (Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); (Cortina and Magley, 2003). Informal, unofficial types of retaliation include antisocial behaviors that result in verbal and nonverbal harm (Cortina and Magley, 2003).4 In instances of informal adverse actions, targets have shared experiences ranging from yelling, name calling, bullying, and incivility after filing a report of gender harassment (Jacoby, 2022). Formal adverse actions in academia include failed grades, preventing someone from participating in educational activities, removing academic credit or authorship, withholding career-based opportunities and influencing others in positions of power to withhold opportunities, and damaging someone’s reputation (Department of Education, 2022; Harvard Business School, 2022; Jha, 2021). Some targets have also described having research data withheld from them as a response to reports of sexual harassment (Jha, 2021).
The Negative Consequences of Retaliation
Retaliation in any form can result in a range of negative consequences for those who experience it. The above examples show how individuals can experience limitations in the opportunities to contribute and advance in their career, and they may feel as if their only response to the adversity is to leave the field.
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3 Multiple circuit courts of appeals have held that the standard laid out in Burlington Northern for Title VII retaliation claims likewise applies to Title IX retaliation claims; however, the Supreme Court has not squarely addressed this question.
4 The study gathered data about the types of retaliation that were self-reported in complaints filed with a state agency; the agency frequently did not find enough evidence to conclude that retaliation occurred.
Research also shows that whistleblowers, who are similar to those who expose or report sexual harassment5 can experience retaliation or “second order sexual harassment” (Vidu et al., 2022), which in turn can result in increased anxiety and depression (Soeken and Soeken, 1986) and post-traumatic stress disorder (Bjørkelo et al., 2008). They can also endure severe social stress that can be more destructive than “all other work-related stressors combined” (Lewis and Vandekerckhove, 2018). Beyond the psychological decline that can result from retaliation, targets have also expressed long-lasting, time-consuming consequences. For example, targets who had research data withheld by their harasser as a consequence of reporting sexual harassment described a delay in their research progress because they had to wait at least a year before acquiring data (Jha, 2021). Even for those who remain in their positions, the impact of retaliation can also make individuals become less productive, less committed to their organization, and less satisfied with their jobs (Wendt and Slonaker, 2002).
Furthermore, if institutions fail to respond—or respond ineffectively—to reports of sexual harassment or retaliation, targets may experience institutional betrayal, which has proven more harmful to the target than the original incident(s) (Smith and Freyd, 2014). For example, a graduate student who reports sexual harassment to the university and then is cut out of lab work may feel betrayed by the school for failing to protect them from punishment. When an institution allows such retaliation to take place, the target’s sense of trust and dependency in the institution to maintain their safety and act on their behalf is negatively impacted. Importantly, the negative effects of institutional betrayal can be exacerbated further due to individual’s varying identities—for instance, sexual minority students report higher levels of institutional betrayal than sexual majority students, which further predicts elevated levels of post-traumatic symptoms (Smith et al., 2016).
Retaliation can also have consequences for the broader community and the institution. For example, observers of retaliation can be affected by the low morale in the department or unit stemming from retaliation (Wendt and Slonaker, 2002). The organizational climate can then shift and result in organizational cynicism and feelings of institutional betrayal, especially by those most frequently targeted by sexual harassment, including women; Black people, Indigenous people, and other people of color; those with sexual orientation and gender identity expression that differs from the majority population; and graduate students (Brubaker, 2018; Tillman et al., 2010). In addition, research shows that the resulting negative effects of retaliation (e.g., low productivity, turnover, absenteeism) can also result in a significant financial burden for institutions (Wendt and Slonaker, 2002). Furthermore, the risk of retaliation without accountability can create an environment in which sexual harassment is more likely to occur and can encourage the perception of organizational tolerance of sexual harassment (NASEM, 2018).
The Fear of Retaliation
Another consequence of retaliation is the fear of retaliation. Specifically, individuals who know of retaliatory actions against those who report sexual harassment—and the resulting negative consequences of those
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5 Since there is minimal research demonstrating the negative consequences of retaliation experienced by those who specifically reported sexual harassment, we draw from literature on “whistleblowers” to help illustrate the negative consequences that can be experienced by those whistleblowers who experience retaliation. Similar to how those who report sexual harassment aim to expose related harm, “whistleblowers” are generally defined by the research as individuals who expose various legal and policy violations and misconduct, like abuse, fraud, misuse of public funds, and more.
actions on the targets—feel fearful of becoming retaliatory targets themselves. Not only can this fearfulness affect their mental health, but also it can deter them from reporting sexual harassment (Cortina and Berdahl, 2008; Cortina and Magley, 2003; NASEM, 2018). Both targets and bystanders have been deterred from reporting sexual harassment because of fear that doing so could have negative consequences for their jobs and/or careers (Mangan, 2022; Stripling, 2022). One of the likely results of this issue is that countless concerns about both sexual harassment and retaliation never reach those in positions of authority who are responsible for responding to reports of sexual harassment and retaliatory action within an institution, let alone the investigative state and federal agencies. Indeed, research shows that there are, on average, about nine unreported instances of retaliation for every one report (Wendt and Slonaker, 2002). A secondary but equally important effect of this fear is that it also prevents targets of sexual harassment from accessing supportive services, even those that are confidential and available within their institutions (Cortina and Magley, 2003; NASEM, 2018). Institutions often have procedures in place for connecting those who file complaints of sexual harassment or retaliation with various supportive resources (in some cases, providing such services is required by law). However, if an individual never files a complaint due to fear of retaliation, the individual may never be aware of or connected with these helpful services.
Prevalence of Retaliation
Both federal data and research studies show that retaliation is common in workplaces and academic settings, even though these data are likely undercounting the scope of the problem because, as mentioned earlier, many incidents of retaliation are not formally reported. A high frequency of employees formally reporting retaliation related to various forms of harm—not just sexual harassment—conducted by their employers is shown in data collected by the U.S. Equal Employment Opportunity Commission (EEOC), a federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§20002-2000e17, as amended) and other federal laws prohibiting discrimination and retaliation against employees.6 In the past 20 years, the number of retaliation complaints received by the EEOC has nearly doubled, growing from 19,694 in FY 1999 to 34,332 in FY 2021 (Equal Employment Opportunity Commission, 2021b). Looking at the past 5 years of the EEOC’s publicly available data, complaints alleging retaliation made up an increasing portion of the total complaints it received, growing from 45.9 percent in FY 2015 to 56.0 percent in FY 2021 (Equal Employment Opportunity Commission, 2021a). Retaliation complaints are likewise frequently received by the Office of Civil Rights (OCR) of the Department of Education. OCR is responsible for enforcing Title IX, which prohibits discrimination based on sex as well as retaliation in education programs and activities.7 OCR additionally enforces Title VI of the Civil Rights Act of 1964 (42 U.S.C. Section 2000d et seq.), which prohibits discrimination based on race, color, and national origin in education programs and activities as well as related retaliation. In FY 2022, OCR received 9,498 Title IX complaints of which 508 (5 percent) involved claims of retaliation. During the same time frame, OCR received 3,329 Title VI complaints, of which 802 (24 percent) involved claims of retaliation (Office for Civil Rights, 2023). Research studies have similarly shown a high prevalence of retaliation, including Wendt and Slonaker’s 15-year study (2002), which revealed that in 98 percent of cases where women reported sexual harassment, they experienced various forms of retaliation, including job termination.
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