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Retaliation for Protected Activity

The separate legal wrong of punishing a person for complaining about discrimination, reporting a violation, taking protected leave or helping in an investigation - a claim that often succeeds where the underlying complaint would not.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Nearly every civil-rights and workplace statute forbids not only the conduct it regulates but retaliation against a person for opposing that conduct or participating in a proceeding about it. An employee who complains of harassment, files a discrimination charge, testifies for a co-worker, requests an accommodation, takes family or medical leave, reports a safety violation or wage theft, or refuses to take part in something unlawful is protected from being punished for it. The protection covers the complaint whether or not the underlying conduct turns out to have been unlawful, so long as the person reasonably and in good faith believed it was - which is why a retaliation claim can succeed after the discrimination claim it grew from has failed.

The elements are protected activity, an adverse action, and a causal link between them. For retaliation the adverse action is defined broadly: anything that might dissuade a reasonable worker from making or supporting a complaint, which reaches a schedule change, an unfavourable transfer, exclusion from a meeting, a negative reference, or a report to immigration authorities, not only discharge or demotion. Causation is usually proved by timing, by a departure from the employer's normal practice, by shifting explanations, or by statements, and the employer answers by showing a legitimate reason that would have led to the same action regardless. Under the main federal employment statute the employee must show the protected activity was the but-for cause; some state laws use a lighter standard.

Retaliation protections extend beyond employment. Tenants are protected from eviction or rent increases for reporting code violations or exercising fair-housing rights; patients and nursing-home residents from reprisal for complaints; and the public from retaliation for exercising First Amendment rights against a government actor. Whistleblower statutes add their own, some with substantial rewards, and several require a complaint to a specific agency within a short window that runs from the retaliatory act.

Where this comes from

The employment anti-retaliation provision of Title VII is 42 U.S.C. § 2000e-3(a), construed in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (the "dissuade a reasonable worker" standard) and University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) (but-for causation); parallel provisions are in the ADA (42 U.S.C. § 12203), the ADEA (29 U.S.C. § 623(d)), the FMLA (29 U.S.C. § 2615), the Fair Labor Standards Act (29 U.S.C. § 215(a)(3)) and the Fair Housing Act (42 U.S.C. § 3617). Landlord retaliation is state law in most states. Whistleblower statutes - the Sarbanes-Oxley Act, the Dodd-Frank Act, the False Claims Act, OSHA section 11(c) - each have their own procedure and deadline.

When people hire a lawyer for this

Document the protected activity and the timeline before anything else: the date of the complaint, who received it, and every change in treatment afterwards. A lawyer will identify which statute's retaliation provision fits, because the deadlines and forums differ - some claims go to the EEOC, some to OSHA within a very short period, some straight to court - and will tell you whether to keep complaining internally, which builds the record, or to stop, which some employers use to argue the problem resolved itself.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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