Organizational retaliatory behavior
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Organizational retaliatory behavior (ORB) is a form of workplace deviance. ORB is defined in the bottom up sense as an employee's reacting against a perceived injustice from their employer. ORB is also a top down issue occurring when an employee speaks out or acts in an unfavorable way against the employer.
The International Journal of Conflict Management divides ORB into four different conceptual indicators; rule breaking, level or work behavior, affective commitment, and turnover intention. All of these are forms of Workplace Deviance.
Organizational justice and retaliatory behavior
ORB is the result of perceived injustices in the workplace, and can be categorised into the three following groups:
- Interactional justice: An employees evaluation of the perceived fairness of interpersonal treatment from his or her own superiors (Bies and Moag 1986), and includes an organization’s leaders treating employees with respect, dignity, sensitivity and sincerity.
- Procedural justice: An employee’s evaluation of the perceived fairness of rules and processes used by the organization to distribute outcomes to all employees within the organization (Thibault and Walker 1975).
- Distributive justice: An employee’s perception of the fairness of his or her own outcomes such as pay (Adams 1965).
Employees who feel they are being treated fairly are more likely to be loyal to their companies, have higher morale and increased helping behaviors. Employees who feel they are being treated unfairly tend to have lower morale, higher turnover rates and are more likely to exhibit ORB and another forms of workplace deviance including theft and/or sabotage in attempts to get even with their wrongdoer.
The main reason for top down ORB is whistleblowing, and it differs from that of employees. Whilst employees will act out against the organization, employers will act out against the whistle blower by excluding them from meetings, eliminate their perquisites, assignment to less desirable work or to a heavier work load, more harsh criticism, and in certain cases, pressure to drop their lawsuit altogether. These are all forms of punishment to the whistle blower meant to encourage employee silence and to discourage future whistle blowing.
Employers typically will not waste resources retaliating with employees that are young, inexperienced and have no public credibility. Retaliation often occurs against employees with credibility in their field that have stated their claims against the organization publicly.
- Employment discrimination based on gender:
12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
- Workplace retaliation:
(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
The test of whether workplace retaliation has occurred is whether the action would deter a reasonable person in the situation of the employee from making a complaint. The "situation" of the employee includes the granular circumstances of the employee and their particular job, such as child care and scheduling issues. Witnesses and persons who cooperate with investigations of discrimination may also be protected.
Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a):
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Statistics are showing an increase in retaliatory-based lawsuits, nearly doubling since 1992 according to Zink and Gutman. This is believed to be because employers are beginning to understand the full financial costs of employee retaliatory behaviors. Another theory as to why lawsuits are increasing is employees are reporting cases of top down retaliation more due to an increased understanding of employee rights.
Retaliation claims are standardized by the adverse employment clause while states “any action that materially changes the terms, conditions, and privileges or employment”. Validity of retaliation lawsuits are also based on the ‘reasonable person deterrence’ standard from the Equal Employment Opportunity Commission compliance manual that states “actions employer behavior is any actions reasonably likely to deter the charging party from engaging in a protected activity”. Deterring actions include: Threats, reprimands, negative performance evaluations, and harassment, suspending or limiting access to an internal grievance, giving and unjustified negative job reference, refusing to provide a job reference, informing an individual’s prospective employer about the individual’s protected activity, and putting an employee under surveillance.
Notable court cases
- Robinson v. Shell Oil Co. (1997) Actions designed to interfere with former employee’s prospective employment
- Winarto v. Toshiba American Electronics Components, Inc. (2001) "Birtch continued to harass Winarto verbally, and he also undertook a disturbing physical form of harassment: kicking. Winarto testified that Birtch kicked her at work “many, many times.” lay off based on poor performance appraisals made after complaints of harassment.
- EEOC (Equal Employment Opportunity Commission) vs. Navy Fed. Credit Union (2005) Increased employee surveillance, "The scheme was two-fold: (1) to give Simms favorable performance evaluations, which could be used to defend Navy Federal’s actions in subsequent litigation; and (2) to heighten scrutiny of Simms’s activity in order to discover an objective and seemingly legitimate basis for her termination."
- Noviello v. City of Boston (2005) following complaint of sexual harassment: hostile work environment, false accusations, forcing an employee to eat alone, suggested shift changes
Scholars Folger and Skarlicki have argued “retaliation may serve the interests of organization members and the organization itself in that employee mistreatment may be prevented by moral watchdogs, whose actual or potential retaliation serves to keep abusive managers in check”.
- GOVERNMENT CODE SECTION 12940-12951
- "Workplace Retaliation: What Are Your Rights?" Nolo accessed March 12, 2015 "according to the U.S. Supreme Court, you must consider the circumstances of the situation."
- United States Court of Appeals,Ninth Circuit. Marjati WINARTO, Plaintiff-Appellant, v. TOSHIBA AMERICA ELECTRONICS COMPONENTS, INC. Findlaw accessed March 12, 2015
- Fourth Circuit EEOC v. Navy Federal Credit Union accessed March 12, 2015
- First Circuit Noviello v. City of Boston access March 12, 2015
- Adams, J. S. 1965. Inequity and social exchange. Berkowitz, ed. Advances in Experimental Social Psychology, Vol. 2. Academic Press, NY, 267-299.
- Anecdotage (2004). Retrieved from http://www.anecdotage.com/index.php?aid=6871 on May 2, 2009.
- Folger, R. & Skarlicki, D.P. (2004). Beyond Counterproductive Work Behavior: Moral Emotions and Deontic Retaliation vs. Reconciliation. In S. Fox & P.E. Spector, (Eds.), Counterproductive Work Behavior: Investigations of Actors and Targets. Washington DC: APA Press, pp. 83–105.
- Thibault, J. W., L. Walker. 1975. Procedural Justice: A Psychological Perspective. Lawrence Erlbaum, Hillsdale, NJ.
- Zink, D. L., & Gutman, A. (2005). Statistical trends in private sector employment discrimination suits. In F. J. Landy (Ed.), Employment discrimination litigation: Behavioral, quantitative, and legal perspectives. San Francisco: Jossey Bass.
- Blader, Steven L., Chia-Chi Chang, and Tom R. Tyler. "Procedural Justice and Retaliation in Organizations: Comparing Cross Nationally the Importance of Fair Group Processes." The International Journal of Conflict Management 2(2001): 295-311. Print.
- Dunleavy, Eric. On the Legal Front: What Is All the Fuss About? . Society for Industrial & Organizational Psychology, Inc.. 2 May 2009 <http://www.siop.org/tip/Current/06gutman.aspx>.
- Fitness, Julie. "Anger in the Workplace: An Emotion Script Approach to Anger Episodes Between Workers and Their Supervisors, Co-Workers, and Subordinates." Journal of Organizational Behavior 21(2000): 147-162. Print.
- Fox, Suzy. "The Good, the Bad (and this may get Ugly): ." (2005) Web.2 May 2009. <http://www.asppr.org/pdf/fox_aom05_positive_CWB.pdf>.
- Lim, Vivien K. G.. "The IT Way of Loafing on the Job: Cyberloafing, Neutralizing and Organizational Justice ." Journal of Organizational Behavior 23(2002): 675-694. Print.
- Parmerlee, Marcia A., Janet P. Near, and Tamila C. Jensen. "Whistle-Blowers' Perceptions of Organizational Retaliation ." Administrative Science Quarterly 27(1982): 17-34. Print.
- Umphress, Elizabeth Eve, Giuseppe (Joe) Labianca, Daniel J. Brass, Lotte Scholten, and Edward (Eli) Kass. "The Role of Instrumental and Expressive Social Ties in Employees' Perceptions of ." Organizational Science. 14(2003): 138-753. Print.