Most retaliation charges are preventable. Yet retaliation has been the most common employment complaint in the U.S. for 17 straight years up through 2024. In 2024, it made up nearly half of the EEOC’s 88,531 discrimination charges. Employers who understand which employee activities trigger retaliation protection and document employment decisions consistently are in a much stronger position to avoid a charge being filed.
Conn Maciel Carey LLP’s Labor & Employment Practice advises employers on retaliation prevention and defends retaliation charges before the EEOC and in federal and state courts.
Retaliation Prevention Starts with Recognizing Protected Activity
Several federal statutes prohibit employers from taking adverse action against employees who exercise their rights: Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and the National Labor Relations Act. Each prohibits employers from taking adverse action against an employee for exercising rights under that statute, and the law that applies to a retaliation charge is determined by the specific right the employee exercised.
Filing an EEOC Charge or Participating in an EEOC Investigation
Filing a charge with the Equal Employment Opportunity Commission or participating in an EEOC investigation is protected under federal retaliation law, and the protection extends to anyone involved in the process, not just the employee who filed the charge. An employer who takes adverse action against any employee connected to an EEOC charge, whether that employee filed it or simply participated in the investigation, has to be able to show the action was taken for documented reasons that had nothing to do with the charge.
Participating in an Internal Workplace Investigation
Employees who participate in an internal workplace investigation into alleged discrimination or harassment, whether as a complainant or a witness, are protected from retaliation under federal law. An employer who changes the working conditions of an employee after that employee gave a statement in an internal investigation, or who excludes a witness from opportunities available to other employees, faces the same retaliation exposure as if the investigation had been conducted by the EEOC.
Requesting an Accommodation or Taking Protected Leave
Requesting an accommodation based on a disability or a religious belief, or taking leave protected under the Family and Medical Leave Act, triggers retaliation protection the moment the request is made. An employer who demotes an employee after that employee returns from medical leave, or who denies a promotion to an employee who requested a religious accommodation, faces retaliation exposure if the employee can show the employment decision was based upon the request.
Reporting a Safety Hazard or Discussing Wages
Federal law protects employees who report a workplace safety hazard — whether to a supervisor or to the Occupational Safety and Health Administration — and employees who discuss wages or working conditions with coworkers. The latter is an explicit right under the National Labor Relations Act, and an employer who disciplines an employee for exercising either invites a retaliation charge.
Informal Complaints Trigger the Same Protections as an EEOC Filing
Retaliation protection does not require a formal charge or legal terminology. A verbal complaint to a supervisor or a report to HR is enough, provided it is specific enough for the employer to reasonably understand that the employee is opposing conduct they believe is unlawful. Vague grievances and general workplace complaints fall short. Which law governs the protection depends on the nature of the complaint:
- Verbally reporting race, sex, religion, or national origin discrimination to a supervisor or HR (Title VII, opposition clause)
- Reporting harassment internally (Title VII, opposition clause)
- Refusing to follow an order the employee reasonably believes is discriminatory (Title VII, opposition clause)
- Requesting a disability or religious accommodation (ADA or Title VII)
- Reporting a workplace safety hazard to a supervisor or to OSHA (OSH Act)
- Discussing wages or working conditions with coworkers (NLRA)
An employer who disciplines or demotes an employee after receiving an informal complaint must show the decision was made for legitimate, non-retaliatory reasons that would have resulted in the same action regardless of the complaint.
Employers who can recognize protected activity know exactly when the risk of a charge is highest. Any employment decision affecting an employee who has recently engaged in a protected activity will face scrutiny, and the employer who documents its reasoning at the time of the decision is far better positioned to show the decision had nothing to do with that activity.
Timing and Documentation Are Central to Retaliation Prevention
An employer who takes adverse action against an employee shortly after that employee engages in a protected activity gives that employee circumstantial evidence of causation. The employee does not need to prove the employer intended to retaliate — timing alone can establish the connection a retaliation charge requires, and the employer then has to show the decision was made for legitimate, non-retaliatory reasons that would have led to the same outcome regardless of the protected activity.
Adverse Action Goes Beyond Termination
Federal law defines an adverse action as anything that would dissuade a reasonable employee from engaging in a protected activity. Even schedule changes or negative performance reviews can sometimes qualify as adverse actions.
Documentation Is Vital
Documentation can separate a defensible employment decision from one that becomes the subject of a retaliation charge. An employer who can point to a written record showing the basis for a decision, created at the time it was made, is in a far stronger position than one who has to reconstruct the reasoning after a charge is filed. Employers who know an employee has recently engaged in a protected activity and have a pending employment decision affecting that employee should document the basis for that decision in writing and have a second decision-maker review it before proceeding.
Retaliation Prevention in the Everyday Decisions Employers Make
Document Performance Issues as They Happen, Not After a Complaint Is Filed
Employers who document performance and conduct issues at the time that they arise are in a much stronger position to show that an employment decision was made for legitimate reasons. An employer who waits until after a retaliation charge is filed to put concerns in writing will have a very hard time convincing anyone those concerns were genuine.
Be Deliberate About Employment Decisions Made After an Employee Engages in a Protected Activity
An employee who engages in a protected activity does not become immune from legitimate employment action. An employer who has a legitimate reason to terminate or discipline an employee can still do so, but needs to be able to show the decision was made for reasons unrelated to the protected activity. Employers who know an employee has recently engaged in a protected activity and have a pending employment decision affecting that employee should document the basis for that decision in detail and have a second decision-maker review and sign off before proceeding.
Retaliation Charges Compound Other Employment Claims
A retaliation charge does not always stem from a harassment or discrimination complaint. An employee who faces adverse action after taking FMLA leave or requesting a religious accommodation, for example, may have grounds to bring a retaliation charge on its own with nothing else attached. When an employee files a harassment or discrimination complaint and the employer takes adverse action against that employee afterward, a retaliation charge gets added to the original one, and the employer is now defending two distinct cases with their own potential damages. Employers who take steps to prevent retaliation reduce the risk of both.
Steps Employers Can Take to Prevent Retaliation Charges
1. Put a Written Anti-Retaliation Policy in Place
Without a written anti-retaliation policy, managers have no clear standard to measure their own conduct against. Employers who put a written policy in place give managers a concrete reference point for evaluating whether an employment decision made after an employee engages in a protected activity could be viewed as retaliation. The policy needs to define what retaliation is and give managers concrete examples of conduct that crosses the line, including subtle actions like reassignments or exclusion from meetings that managers may not recognize as retaliation.
2. Give Employees a Clear Internal Path to Report Retaliation
Employers who have no clear internal reporting channel give employees who experience retaliation no option but to file a charge with the EEOC, and an employer whose only reporting channel runs through a direct supervisor leaves that employee with nowhere to go when the supervisor is the one retaliating. Employers who give employees a direct line to HR to report retaliation give that employee a viable internal path to resolution, and an employee whose concern is addressed internally may not have a reason to file a charge with the EEOC.
3. Train Managers on Retaliation Before It Happens
A manager who does not know which actions constitute retaliation will not recognize that a decision made shortly after an employee engaged in a protected activity could generate a retaliation charge.
After an employee engages in a protected activity, managers should not:
- Demote or reassign that employee
- Exclude that employee from meetings, training, or opportunities available to other employees
- Issue a negative performance review that is not supported by documented performance concerns
- Increase scrutiny or micromanagement of that employee
- Change that employee’s schedule or working conditions in a way that disadvantages them
Employers who require managers to check with HR before making an employment decision affecting an employee who has recently engaged in a protected activity give HR the opportunity to flag a potential retaliation issue before any action is taken.
4. Document Employment Decisions at the Time They Are Made
Employers who put performance concerns and employment decisions in writing at the time they arise are in a far stronger position to prevent and defend retaliation charges. Documentation created at the time carries far more credibility than documentation created after an employee files a charge. Employers should document the following as they happen:
- Performance concerns and conduct issues
- Warnings and disciplinary actions issued to an employee
- Performance improvement plans, including the date they were initiated and the specific concerns that prompted them
- The reason for any employment decision affecting an employee who has recently engaged in a protected activity
Retaliation Charges Are Preventable
Workplace retaliation is preventable, and employers who take the steps above can stop most charges before they are ever filed. Conn Maciel Carey LLP works directly with employers to create preventative programs and also defends employers against retaliation charges before the EEOC and in federal and state courts.
If you are working to prevent workplace retaliation or defending a charge that has already been filed, get in touch with our team to talk through your specific situation and what needs to change.