Workplace Retaliation

What counts as protected activity

Nearly every US employment law has an anti-retaliation provision, so the list of protected activities is long. Common ones:

• Filing or supporting a discrimination or harassment complaint, internally or with the EEOC or a state agency, under Title VII, the ADA, the ADEA and similar laws.
• Participating as a witness in a workplace investigation, lawsuit or agency proceeding.
• Opposing practices the employee reasonably believes are discriminatory, such as objecting to a manager's comments about a candidate's religion.
• Requesting a disability, pregnancy or religious accommodation.
• Taking or asking about FMLA leave or state paid sick leave.
• Complaining about unpaid wages or overtime under the FLSA. The Supreme Court held in Kasten v. Saint-Gobain (2011) that oral complaints can count.
• Reporting safety hazards under OSHA section 11(c).
• Discussing pay or working conditions with coworkers, which the National Labor Relations Act protects for most non-supervisory employees, union or not.
• Reporting fraud or securities violations under whistleblower laws such as Sarbanes-Oxley.

The employee doesn't have to be right about the underlying violation. A good-faith, reasonable complaint is protected even if the investigation finds no discrimination.

The three elements of a retaliation claim

A retaliation claim generally requires:

1. Protected activity by the employee.
2. A materially adverse action by the employer. Under Burlington Northern & Santa Fe Railway Co. v. White (2006), this means any action that might dissuade a reasonable worker from making or supporting a complaint. It is broader than termination or demotion: reassignment to worse duties, schedule changes, exclusion from training or a sudden string of write-ups can all count.
3. A causal connection between the two. For Title VII retaliation, the plaintiff must show the protected activity was a but-for cause of the action, under University of Texas Southwestern Medical Center v. Nassar (2013).

Timing is the most common causal evidence. Discipline that starts two weeks after a complaint, from a manager who knew about the complaint, raises an inference of retaliation that the employer then has to explain.

Why retaliation claims are so common

Retaliation has been the most frequently alleged basis in EEOC charges for well over a decade, and it often succeeds where the underlying claim fails. A company can win on the harassment allegation and still lose on retaliation because a manager reacted badly to the complaint.

The reason is human. A supervisor who feels accused gets defensive, starts scrutinizing the employee's work, or tells others about the complaint. Each of those reactions creates evidence. Juries also understand retaliation intuitively in a way they may not understand a statistical discrimination claim.

Retaliation examples in hourly and high-volume workplaces

• A contact-center agent complains about a team lead's comments, and within a month her quality scores are re-audited more strictly than her peers'.
• A warehouse associate reports unpaid pre-shift security screening time, and his shifts drop from five a week to two.
• A retail worker asks for a stool during pregnancy and is moved to the overnight stocking crew.
• A seasonal worker who testified in a coworker's harassment investigation isn't invited back the next season, while everyone else on the crew is.
• An employee uses state sick leave and receives attendance points for it.

None of these involve a firing, and all of them can support a claim. Schedule power is a significant source of risk in hourly operations because it is easy to use and hard to explain afterward.

How to prevent retaliation

• Tell managers what happens after a complaint: no change in duties, schedule, evaluation or discipline without HR review for a set period, often 6 to 12 months.
• Limit who knows. Share complaint details only with people who need them for the investigation.
• Document pre-existing performance issues. If problems were documented before the complaint, the employer's explanation is far more credible.
• Check decisions for timing. Before any adverse action, ask whether the employee recently complained, requested leave or an accommodation.
• Follow up. Check in with complainants and witnesses after an investigation closes.

If an employee resigns because of retaliation, the situation may become constructive dismissal, and if they are fired, a wrongful termination claim. This is general information; anti-retaliation rules vary by law and state, so consult counsel on specific cases.