Why It Matters
Retaliation is the #1 charge filed with the EEOC, accounting for over 55% of all discrimination charges. It's also one of the easiest claims to prove โ an employee reports harassment, gets fired two weeks later, and the timeline alone creates a strong inference of retaliation. Many organizations lose retaliation lawsuits even when they win the underlying harassment claim.
What Counts as Retaliation
Protected Activities (What Triggers Protection)
- Filing a discrimination, harassment, or safety complaint (internally or with a regulator)
- Participating in an investigation or proceeding as a witness
- Reporting financial fraud, securities violations, or compliance failures
- Requesting reasonable accommodation for disability or religion
- Taking FMLA leave
- Reporting safety hazards to OSHA
- Refusing to participate in illegal activity
Adverse Actions (What Constitutes Retaliation)
- Termination โ the most obvious form
- Demotion or pay cut โ reduced responsibilities or compensation
- Reassignment โ transfer to undesirable location, shift, or role
- Exclusion โ being left out of meetings, projects, or opportunities
- Negative performance review โ suddenly receiving poor evaluations
- Increased scrutiny โ being subjected to heightened monitoring or micro-management
- Hostile treatment โ intimidation, threats, ostracism by management or peers
- Reduction of hours โ cutting hours or schedule changes
- Blacklisting โ providing negative references to prevent future employment
The Legal Framework
United States
- Title VII ยง 704(a) โ anti-retaliation for discrimination complaints
- SOX ยง 806 โ whistleblower protection for public company employees
- Dodd-Frank Act โ SEC whistleblower protections with financial rewards
- OSHA โ protection for safety whistleblowers (20+ federal statutes)
- Burlington Northern v. White (2006) โ Supreme Court held that retaliation covers any action that would dissuade a reasonable employee from reporting
European Union
- EU Whistleblowing Directive 2019/1937 โ comprehensive anti-retaliation protections
- Employment directives โ protection for employees who report discrimination
- National laws โ each member state implements protections with local enforcement
How to Prove Retaliation
The standard three-part framework:
- Protected activity โ the employee engaged in a legally protected action
- Adverse action โ the employer took a materially adverse action
- Causal connection โ the adverse action was because of the protected activity (timing, statements, pattern)
Prevention for Employers
- Train all managers โ on what constitutes retaliation and protected activities
- Document everything โ performance issues must be documented before any complaint is filed
- Separate decision-makers โ the person accused should not decide the reporter's employment fate
- Monitor treatment โ HR should proactively check on reporters after complaints are filed
- Consistent enforcement โ apply policies uniformly, not selectively after a complaint
- Anti-retaliation policy โ explicit, communicated, and enforced
Key Regulation
- Title VII ยง 704(a) โ federal anti-retaliation provision
- Burlington Northern & Santa Fe Railway v. White (2006) โ broad definition of adverse action
- EEOC Enforcement Guidance on Retaliation โ detailed interpretive guidance
- EU Directive 2019/1937 โ whistleblower protection from retaliation