Employment Attorneys Respond to Retaliation at Google

This week, several Google employees shared instances of how the company retaliated against them when they elevated instances of abuse, marginalization, harassment, and discrimination in the workplace.

We know that Google isn’t the only place where this is happening. And we know that it can be scary to raise your voice, and not always legally protected.

So we asked our network of employment attorneys to give their take on the situation at Google — and to share tips for raising your voice at work in a way that protects your financial, professional, and emotional well-being.

(Our editors note from Simone: we hope that no one ever has to get to a point where they’re facing retaliation in their workplace. But, if something bad does happen — if you’re ever ignored, dismissed, or denigrated for raising a well-documented and -evidenced concern to your workplace about its management, culture, or product — you should likely start your search for a healthier workplace or team, regardless of whether your concern is considered legally protected behavior or not.)

Have a story about retaliation in the workplace? Share it with us at hello@hellosimone.co.

Simone: How do you respond to Google’s public response that some of the employee complaints may not meet the definition of retaliation? From their statement: “If you report something that is not a policy violation and you believe you are being treated adversely as a result, you should feel free to report that and we will look into it, but it may not amount to retaliation under this policy.”

Vincent White — Partner at White, Hilferty, and Albanese: “Google employees engaged in a ‘coordinated demonstration to protest the company’s handling of sexual harassment allegations against some key executives.’ To me, there is no question that this fits the second definition of retaliation, an activity that ‘[opposes] unlawful activity that he or she reasonably believes constitutes discrimination.’ As such, it should be considered a protected activity that receives all of the protections against retaliation that make the fight for equality in the workplace even possible.

When I lived in Japan, they had a saying, ‘The nail that sticks up gets hammered first.’ This saying represents the other side of, ‘the squeaky hinge gets the oil.’ An individual opposing or reporting sexual harassment or discrimination is often viewed as the problem, they are removing management’s ability to hide their heads in the sand. This sort of protected activity can interrupt a very profitable status quo and leaves management unable to pretend they are running a fair workplace. Worse yet: for some managers, it’s often their friends or peers being reported for bad behavior. Their instinct, sadly, is often not to believe victims — but rather to circle the wagons and eliminate threats.

Stopping retaliation before it can take place is absolutely an employers’ responsibility. Generally the first thing an employment defense attorney might do when retained would be to take steps to prevent retaliation. This acts as a form of triage for the employer, an attempt to stop the bleeding by stopping the claim from potentially becoming far more expensive of a liability through acts of retaliation.

Without robust protections against retaliation, we would be back in the ’50s again. The government would be doing what it does best, failing to provide equal opportunity for the various protected classes and victims would be too worried for their livelihood to even consider hiring an attorney to bring a claim. If we do not have a broad definition of what is a protected activity, we do not have the ability to fight for equality. It is that simple.”

Without robust protections against retaliation, we would be back in the ’50s again.

Eric Bachman — Principal at Zuckerman Law: “In terms of Google’s statement that reporting something that is not a policy violation may not amount to retaliation under this policy, the statement is generally accurate. In the Title VII context, courts usually look to whether an employer subjects an employee to an adverse action (for example, termination, demotion, pay cut) because the employee engaged in protected conduct. Protected conduct often involves filing a complaint of discrimination or serving as a witness in another employee’s complaint. It also includes opposing discrimination by calling out discriminatory statements/conduct at work, resisting sexual advances, or working with other employees to gather information about potential EEO issues. If an employee engages in these types of conduct and the employer then take an adverse action against them, this may constitute illegal retaliation.

On the other hand, just because an employee has complained about an issue that generally impacts everyone (a supervisor who is unable to effectively manage anyone, a lack of interesting projects, etc.) and the employer takes action against them does not mean that the employer has illegally retaliated against the employee.

Putting aside the legal requirements, a key factor in creating a productive and successful workplace is the tone at the top. Do the leaders of the company welcome new ideas and want to hear about ways the company can improve, even if this involves negative or unflattering information about the company’s products or managers? If so, and if the leaders don’t allow others to retaliate against those employees who speak up, then the company is far less likely to be hit with lawsuits on these issues and can instead address these concerns internally. Conversely, if the leaders turn a blind eye or orchestrate retaliation against employees who raise valid concerns (even if these complaints are not technically “protected conduct”) then the company will almost certainly see: (1) less engaged/committed employees and higher turnover; (2) an increased “us versus them” mentality between employees and managers; and (3) a spike in formal retaliation complaints and lawsuits.”

A key factor in creating a productive and successful workplace is the tone at the top. Do the leaders of the company welcome new ideas and want to hear about ways the company can improve, even if this involves negative or unflattering information about the company’s products or managers?

Tracey Bernstein — Partner at Himmel & Bernstein: “If Google really wants to set a new trend, then this definition falls far short of improving its policies and protecting employees in the workplace who make good faith reports of wrongdoing that are not statutorily protected. The reason retaliation protections exist in whistleblower and discrimination statutes is to encourage people to come forward in good faith to make the workplace safer and fairer. However, that protection does not apply outside a statutory framework unless an employer full commits in writing, without caveats, to be responsible if retaliation takes place against those who report wrongdoing that would only be misconduct under the employer’s policies.

Retaliation is not protected under common law in most if not all states. This means that unless you are reporting a violation of a federal or state statute that specifically protects you for reporting the wrongdoing (i.e., discrimination statutes, whistleblowing statutes, etc.), you are most likely not protected from retaliation for reporting general workplace misconduct or mismanagement. Indeed, a common mistake employees make is believing the employee handbook’s claim that they will not be retaliated for reporting wrongdoing protects them. In most states, that is not true if the wrongdoing being reported is not a violation of a state or federal statute, and the employer has language in the handbook that says the policies are discretionary and are not binding on the company. The best way to understand your rights is to seek legal counsel before you report the wrongdoing so that you know what you rights and risks are both practically and legally.

In my 20 years of experience once a company takes what an employee considers retaliatory actions against them for reporting wrongdoing, the relationship is over in almost ever instance. The employee would be well served to be pro-active and start their job search, seek legal advice and work towards an amicable resolution.”

The reason retaliation protections exist in whistleblower and discrimination statutes is to encourage people to come forward in good faith to make the workplace safer and fairer.

Chaim Book — Partner at Moskowitz & Book: “If you report something that you in good faith believe is a violation of the law, and you are incorrect, and then you are punished for it, that would be retaliation under the law. For example, you believe in good faith that you did not receive a promotion because you are pregnant and you complain about it and you were wrong because the company actually used objective criteria to decide on promotions, the company cannot retaliate against you for making that complaint.

Put everything in writing. Immediately after you have a conversation, write it up. This is not necessarily to be sent to anyone, but it is equally important to have a contemporaneous written record of conversations that occurred.”

Simone: A big thank you to our network of employment attorneys for providing this insight. Employees should be empowered to use their skills, creativity and vision at work, and if something goes wrong, follow avenues to a true resolution, without fear of retaliation. At Simone we’re committed to helping people reclaim their agency at work —sign up for our weekly newsletter that includes tips, encouragement and stories about the kick*ss work people are doing around the world.