Retaliation

Adverse action taken by an employer against an employee for engaging in legally protected activity — such as reporting discrimination, filing a complaint, or whistleblowing.

Retaliation occurs when an employer takes adverse action against an employee because the employee engaged in legally protected activity. Protected activities include filing or participating in an EEOC complaint, reporting workplace harassment or discrimination, filing a workers' compensation claim, taking FMLA leave, reporting OSHA safety violations, or disclosing illegal conduct to regulators. Adverse actions include termination, demotion, pay reduction, schedule changes, reassignment, exclusion from meetings, negative performance reviews, or any other action that would deter a reasonable person from exercising their legal rights.

Retaliation is illegal under virtually every major federal employment law — Title VII, the ADEA, the ADA, OSHA, the FLSA, and the NLRA all contain anti-retaliation provisions. It is consistently one of the most frequently filed employment claims with the EEOC, accounting for over half of all charges in recent years. To establish a retaliation claim, an employee must show they engaged in protected activity, the employer knew about it, and the employer took an adverse action causally connected to that activity.

Proving the causal connection between protected activity and adverse action is where retaliation cases often turn. Timing is frequently the most powerful circumstantial evidence: an employee who receives a positive performance review in March, files an EEOC charge in April, and receives a performance improvement plan in May has created a compelling temporal sequence. Courts consider temporal proximity, statements by supervisors, changes in treatment toward the employee, inconsistency in how other similarly situated employees were treated, and departures from standard procedures. The employee does not need direct evidence — circumstantial patterns can establish retaliation.

A critical and often misunderstood feature of retaliation law: an employee does not need to win the underlying discrimination or harassment claim for a retaliation claim to succeed. An employee who files an EEOC charge in good faith — even if the charge is ultimately dismissed as lacking merit — is protected against retaliation for having filed it. The protection extends to the activity of complaining, not just to the merit of the underlying complaint. This means that good-faith complainants who are subsequently subjected to adverse treatment may have strong standalone retaliation claims even when the original complaint cannot be proven.