Understanding Retaliation Protections
Workplace retaliation claims are among the most common employment law cases we handle at Dolce Law PLLC. In fact, retaliation charges consistently outnumber all other discrimination charges filed with the Equal Employment Opportunity Commission (EEOC). Despite their prevalence, many employees don’t fully understand their retaliation protections until they find themselves in a difficult situation. This guide will help you understand what retaliation is, how to recognize it, and what protections you have under the law.
What Is Workplace Retaliation?
Workplace retaliation occurs when an employer takes an adverse action against an employee because that employee engaged in a legally protected activity. Put simply, it’s when your employer punishes you for exercising your legal rights.
Retaliation protections exist because without them, employees would be too afraid to report problems, participate in investigations, or oppose illegal practices—effectively rendering workplace rights meaningless.
Protected Activities
To be protected from retaliation, you must first engage in a “protected activity.” These activities fall into several categories:
Opposition to Discrimination or Harassment
- Filing an internal complaint about discrimination or harassment
- Informally complaining to a supervisor about discriminatory practices
- Refusing to follow orders that would result in discrimination
- Resisting sexual advances or intervening to protect others
- Requesting reasonable accommodations for disability or religion
Participation in Processes
- Filing a charge with the EEOC or state/local agencies
- Cooperating with an internal investigation of alleged discrimination
- Serving as a witness in an EEOC investigation or litigation
- Answering questions during an employer’s investigation
- Providing information during legal proceedings
Whistleblower Activities
- Reporting violations of law to government agencies
- Raising concerns about public health and safety
- Disclosing financial improprieties or fraud against shareholders
- Reporting violations of environmental regulations
- Exposing misuse of public funds
Exercise of Employee Rights
- Taking legally protected family or medical leave
- Filing for workers’ compensation benefits
- Discussing working conditions with colleagues
- Raising wage and hour concerns
- Participating in union organizing activities
What Constitutes Retaliation?
Retaliation involves an “adverse action” taken because of a protected activity. An adverse action is anything that might deter a reasonable person from engaging in protected activity. This includes:
Employment-Related Actions
- Termination
- Demotion
- Salary reduction
- Denial of promotion or transfer
- Undesirable reassignment or shift change
- Exclusion from training or mentoring opportunities
- Arbitrary discipline
- Reducing hours or changing schedule
- Increased scrutiny or harsher evaluation standards
Workplace Atmosphere Changes
- Isolating the employee
- Excluding from meetings or communications
- Encouraging coworker hostility
- Suddenly starting to document minor infractions
- Providing undeservedly negative performance reviews
- Spreading rumors or undermining reputation
- Making the work environment uncomfortable
Post-Employment Actions
- Providing negative references
- Blacklisting within the industry
- Interfering with obtaining new employment
- Filing baseless lawsuits against the employee
- Revoking previously promised benefits
The Causation Requirement
For retaliation to be illegal, there must be a causal connection between your protected activity and the adverse action. This connection can be shown through:
Timing
- Close temporal proximity between the protected activity and adverse action
- Sudden changes in treatment following a protected activity
- Pattern of escalating negativity after multiple protected activities
Statements and Communication
- Direct statements indicating displeasure with protected activity
- Emails, texts, or other communications showing retaliatory intent
- Comments to others about “getting back at” the employee
- Use of terminology suggesting retaliation (e.g., “not a team player”)
Comparative Evidence
- Different treatment from similarly situated employees who didn’t engage in protected activities
- Inconsistent application of policies or procedures
- Deviation from normal company practices
- Pretextual explanations for adverse actions
Legal Protections Against Retaliation
Various laws protect employees from retaliation:
Federal Laws
- Title VII of the Civil Rights Act
- Americans with Disabilities Act (ADA)
- Age Discrimination in Employment Act (ADEA)
- Family and Medical Leave Act (FMLA)
- Fair Labor Standards Act (FLSA)
- Occupational Safety and Health Act (OSHA)
- National Labor Relations Act (NLRA)
- Sarbanes-Oxley Act (SOX)
- False Claims Act (FCA)
- Dodd-Frank Wall Street Reform and Consumer Protection Act
New York State and City Laws
- New York State Human Rights Law
- New York City Human Rights Law
- New York Labor Law
- New York Whistleblower Law
These laws often provide stronger protections than federal laws, with lower thresholds for proving retaliation and potentially higher damages.
Timing for Filing Retaliation Claims
Be aware of these important time limits for filing retaliation claims:
- EEOC charges: Generally 180 or 300 days from the retaliatory act, depending on whether your state has its own anti-discrimination agency (New York has 300 days)
- New York State Division of Human Rights: One year from the retaliatory act
- New York City Commission on Human Rights: One year from the retaliatory act
- Federal lawsuits: After receiving a “right to sue” letter from the EEOC
- State court lawsuits: Three years under New York State and City Human Rights Laws
Missing these deadlines can permanently bar your claim, so consult an attorney promptly if you suspect retaliation.
Proving Retaliation
To establish a retaliation claim, you typically need to show:
- You engaged in a protected activity
- Your employer took an adverse action against you
- There is a causal connection between the protected activity and the adverse action
The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse action. If they do so, you must then demonstrate that the stated reason is pretextual—essentially a cover for retaliation.
Preventive Measures and Documentation
If you’re engaged in protected activities, take these steps to protect yourself:
Document Everything
- Keep a detailed chronology of events
- Save all relevant emails, texts, and communications
- Record the names of witnesses to important interactions
- Make contemporaneous notes after significant conversations
- Retain copies of complaints and responses
- Preserve performance evaluations before and after protected activity
Follow Proper Channels
- Use established complaint procedures when available
- Put concerns in writing to create a record
- Clarify that you’re engaging in protected activity
- Be professional and specific in complaints
- Follow up if no action is taken
Maintain Performance
- Continue meeting job expectations
- Document your accomplishments
- Address legitimate performance concerns
- Request written clarification of new expectations
- Save evidence of good performance
Steps to Take If You Experience Retaliation
If you believe you’re experiencing retaliation:
- Continue documenting everything, including new instances of adverse treatment.
- Consider internal remedies by reporting the retaliation to HR or upper management not involved in the retaliation.
- Consult with an employment attorney to understand your options before taking further action.
- File administrative complaints with appropriate agencies like the EEOC or New York State Division of Human Rights.
- Consider your overall career strategy and whether to seek another position while pursuing legal remedies.
Damages Available in Retaliation Cases
If successful, retaliation claims may provide various remedies:
- Reinstatement to your position
- Back pay for lost wages and benefits
- Front pay if reinstatement isn’t feasible
- Compensatory damages for emotional distress
- Punitive damages in cases of willful violations
- Attorney’s fees and litigation costs
The exact damages available depend on the specific laws involved and the jurisdiction of your case.
Conclusion
Retaliation protections are fundamental to ensuring that workplace rights can be meaningfully exercised. Understanding these protections empowers you to stand up for your rights while taking appropriate precautions to safeguard your career.
At Dolce Law PLLC, we exclusively represent employees throughout New York. We can help you assess whether you’ve experienced illegal retaliation, navigate the complex administrative and legal processes involved in pursuing a claim, and fight for the compensation you deserve. Contact us for a confidential case evaluation about your specific situation.
