A Case of Bias, Retaliation, and Reporting Issues 14:54, June 9, 2017

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A Case of Bias, Retaliation, and Reporting Issues

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Employee lawsuits are unfortunately common for employers. Beyond the legal ramifications, a lawsuit ultimately reflects an employee who felt they had no other choice but to sue. A recent EEOC lawsuit provides context for the costs of bias and retaliation, and the benefits of reporting issues internally, early and effectively.

The Case

In the lawsuit, Adrian Scott Duane alleged that his employer fired him “within minutes” after confronting him about a negative review he had posted on Glassdoor.com weeks prior. In particular, the negative review said:

If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball — then you’re likely to find yourself on the outside … Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.

According to the complaint, Duane, a transgender male, said his employer subjected him to harsher work restrictions while Duane recovered from gender confirmation surgery. Non-transgender employees who took leave did not receive the same treatment. Duane felt he had no other choice but to post on Glassdoor, reflecting reporting issues on behalf of his employer. The employer maintains Duane’s orientation and gender was not a factor in the employee’s termination, and the CEO strongly asserted his company “welcomes all individuals equally regardless of gender identity,” according to the National Law Journal.

Whistleblower Hotlines Are Not Enough

Studies and research show that a single process for reporting unethical behavior is probably not sufficient. Even then, a company’s culture may disincentivize or hinder an employee’s willingness to report unethical or illegal behavior. A National Business Ethics Survey found that 87% of employees report wrongdoing if their company has an effective compliance and ethics program. It is unclear what process Duane’s employer used for handling complaints. But whatever it was, an anonymous employee review must have felt safer than relying on the company’s compliance and ethics program, which calls into question its overall effectiveness.

The Cost of Bias, Discrimination, and Retaliation

There are big costs for both employers and employees when employees don’t submit complaints and employers don’t them promptly. Research on the health effects of the fear of retaliation show why workplace complaints are good. Employers that don’t address concerns can provoke deep anger, which further creates “detrimental cognitive, psychological, and physiological effects” in workers, such as humiliation, resentment, demoralization and physical problems such as high blood pressure and heart disease.” The bad health effects of discrimination are well-documented. Indeed, UCLA research has found discrimination to be so harmful to mental health that it considers discrimination to be a public health concern.

Finally, bias against marginalized groups has many costs, regardless of whether it was intentional, conscious, or unconscious. Bias is defined as involving “mental shortcuts based on social norms and stereotypes,” which often leaves entire groups of people feeling excluded. In this case, the CEO is vehement that the company did not intentionally discriminate against anyone based on their gender differences, while the employee nonetheless feels targeted by him and the organization. It could be the work of unconscious or conscious bias, especially if certain ethnic and social groups dominate the workplace as the employee alleged.

What Companies Can Do

As my colleague Steve Treagus writes, employers should incentivize internal whistleblowing by building in processes, like multiple ways of reporting issues confidentially, and promoting a culture that rewards moral courage. An effective code of conduct will prescribe in detail how an employee may report concerns and that they will not face retaliation. The benefits are also future oriented. Research shows that whistleblowing deters future wrongdoing, and is one determinant of a sustainable, ethical culture.  

LawRoom (powered by EverFi) delivers online training to help your business meet compliance requirements both dynamically and scalably. In addition to our award-winning online courses, LawRoom delivers a robust, cloud-based learning management system to help you easily deploy and track our growing library of ethics, anti-harassment, data security and employee conduct courses.

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Douglas Kelly
Douglas Kelly is EverFi's lead legal editor. He writes on corporate compliance and culture, analyzing new case law, legislation and regulations affecting US companies. Before joining EverFi, he litigated federal and state employment cases and wrote about legal trends. He earned his JD from Berkeley Law and BBA from Emory University.

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