What Counts as Retaliation at Work?

Retaliation claims are often easier to prove than the original complaint, because the timing and the employer's reaction can speak for themselves.

Protected activities

Under federal anti-discrimination laws, it is illegal to retaliate against an employee for (EEOC; 42 U.S.C. 2000e-3):

• Filing or being a witness in a discrimination charge, investigation or lawsuit
• Complaining about discrimination or harassment, internally or externally
• Requesting a disability or religious accommodation
• Refusing orders that would result in discrimination
• Resisting sexual advances or intervening to protect others

Other laws protect reporting wage violations, safety hazards, taking FMLA leave, filing workers' comp claims, union activity and whistleblowing. See whistleblower protections.

What counts as an adverse action

The Supreme Court held in Burlington Northern v. White that retaliation covers any action that might dissuade a reasonable worker from making or supporting a charge of discrimination, not just firing. Examples:

• Termination, demotion or denial of promotion
• Pay cuts or fewer hours
• Worse assignments or schedules
• Unjustified negative evaluations or discipline
• Increased scrutiny, exclusion or harassment
• Threats, or reporting someone to immigration authorities

How retaliation is proven

1. You engaged in protected activity.
2. The employer took a materially adverse action.
3. There is a causal connection.

Evidence often includes close timing, a sudden change in treatment, inconsistent explanations, comments by decision-makers, and how others who did not complain were treated.

Deadlines

Retaliation charges under federal discrimination laws generally must be filed with the EEOC within 180 or 300 days. Some whistleblower laws allow only 30 days. See how to file a discrimination complaint.

What to do

• Keep a timeline of your complaint and everything that changed afterward.
• Save performance reviews, emails and messages.
• Continue doing your job well.
• Report retaliation in writing, too; that report is also protected.

Talk to an employment lawyer early, especially before resigning, since quitting can complicate some claims.

Sources

1. EEOC: Retaliation
2. Cornell Law School LII: Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)
3. Cornell Law School LII: 42 U.S.C. 2000e-3, Other unlawful employment practices