Workplace retaliation claims have been rising across industries. According to recent reports from the U.S. Equal Employment Opportunity Commission (EEOC), retaliation is most frequently cited basis for discrimination charges. For employers, internal complaints of retaliation can pose significant reputational, legal, and cultural risks, not just human resources concerns.
Retaliation complaints present unique challenges for HR, leaders, and legal counsel. Retaliation may be overt or subtle, intentional or not, and even its perception can damage trust and lead to complaints or lawsuits. This article is the first in a three-part series exploring workplace retaliation claims and providing a practical roadmap for employers to understand retaliation, prevent it, and respond effectively when complaints do arise.
Understanding Workplace Retaliation: Definition and Legal Framework
Federal and state laws — including Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act (FEHA) — prohibit retaliation against employees who engage in legally protected activity.
To establish a claim for retaliation, employees generally need to demonstrate three elements:
- They engaged in a protected activity.
- They suffered an adverse employment action.
- There is a causal connection between the protected activity and the adverse action.
Defining “Protected Activity”
Protected activity encompasses a wide range of actions intended to assert or protect workplace rights. This can include:
- Reporting or opposing conduct or practices believed to be unlawful, such as discrimination, harassment, wage violations, or safety concerns.
- Participating in a workplace investigation or legal proceeding, either as a complainant or witness.
- Taking legally protected leaves of absence — such as family, medical, or military leave.
- Requesting accommodations for disabilities or sincerely held religious beliefs.
The threshold for “protected activity” is intentionally low, so even informal objections or conversations can trigger anti-retaliation protections. For instance, simply telling a manager, “I think we are paying women less than men,” can be sufficient to invoke protection.
Additionally, employees are protected from retaliation even if their concerns are ultimately unsubstantiated, provided they had a reasonable, good faith belief that the practice in question was unlawful. This standard is designed to allow employees to raise concerns in the workplace without risk of reprisal.
What Constitutes “Adverse Action”?
Courts and enforcement agencies interpret adverse actions broadly. An adverse action refers to any measure that might dissuade a reasonable employee from raising concerns. While termination and demotion are more clear examples, adverse actions may also include:
- Changes to shifts or work assignments
- Increased performance scrutiny
- Denial of overtime or training opportunities
- Social ostracism or exclusion from meetings
- Hostile behavior or threats
Employers sometimes underestimate how subtle workplace behavior can be construed as retaliatory. For example, removing an employee from collaborative projects after they file a complaint may be seen as exclusion rather than protection.
Demonstrating Causation
Under federal law, an employee must show that the employer’s decision or action would not have occurred “but for” the protected activity. In California, an employee need only show that the protected activity was a “substantial motivating factor” in the employer’s decision or action.
- Key update: In California, Senate Bill 497, effective January 1, 2024, introduced a 90-day rebuttable presumption: if an employer takes adverse action within 90 days of an employee engaging in protected activity, the action is presumed retaliatory unless the employer proves otherwise. This legislative change shifts the burden to the employer to prove the action was lawful.
Recognizing the Signs and Impact of Retaliation
Legal risks are only part of the story. Actual or perceived retaliation can have far-reaching effects within an organization, undermining psychological safety, damaging morale, and increasing employee turnover. Employees who fear negative consequences for raising concerns may become less likely to speak up, which can undermine trust within the workplace.
Without careful management and oversight, these actions can be misinterpreted or mishandled, putting organizations at increased risk.
Preventing Retaliation Before Complaints Arise
An effective approach to preventing retaliation starts well before any complaint is filed. Employers can lay this groundwork by creating clear policies, providing comprehensive training, and nurturing a supportive organizational culture.
Best Practices for Preventing Retaliation
Policy Clarity
Anti-retaliation policies should be easy to understand, accessible, and consistently enforced. These policies typically define what constitutes protected activity, specify prohibited behaviors, and outline clear and accessible procedures for reporting concerns.
Additionally, it is important that policies and procedures are administered uniformly across departments and individuals. Inconsistencies, even if unintended, may contribute to perceptions of unfairness or potential retaliation.
Adequate Training
Comprehensive anti-retaliation training can assist managers in identifying both overt and subtle forms of retaliation. Such training helps guide managers on how to spot and address less visible forms of retaliation, such as social exclusion. For Human Resources professionals, specialized training focusing on confidentiality, impartiality, and keeping thorough recordkeeping can help ensure a consistent and fair approach to handling complaints.
Culture of Respect
Leadership can influence organizational culture by listening to concerns and encouraging open communication. Providing anonymous reporting options, scheduling regular check-ins, and demonstrating support for individuals who raise issues may help reduce apprehension about potential retaliation and foster an environment where employees feel safe raising issues.
👉 In the next part of the series, we’ll explore what to do when a retaliation complaint actually lands on your desk — covering investigations, cross-complaints, and handling workplace dynamics.
