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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.

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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.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono programme or legal aid; a court can also waive its own filing fees.

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Choose your state. Each link opens the Discrimination directory page for the city in that state with the most currently published law firms that list this work; where a state has more than one, the others open under it. Where a state has no Discrimination listing yet, the link opens the broader Civil & Human Rights page instead and is marked so. The list is generated when this page loads, so a state whose listings have lapsed drops out rather than becoming a dead link.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

ADA Public Accommodations (Title III)The part of the Americans with Disabilities Act that applies to businesses open to the public - shops, restaurants, hotels, clinics, theatres, and in many courts their websites - requiring access, policy changes and communication aids, with the cost limits that shape what can be demanded.
Disparate ImpactDiscrimination without a discriminatory intent - a neutral rule, test or practice that falls much harder on a protected group and cannot be justified by business necessity - and the statutes under which that theory is and is not available.
Excessive ForceThe constitutional limit on how much force police may use in a stop, an arrest or a search - judged by what a reasonable officer would have done in the moment, and the reason body-camera footage decides more of these cases than testimony does.
False Arrest and Malicious ProsecutionThe claims available to a person detained without probable cause or prosecuted without it - the state torts, their constitutional counterparts, and the favourable-termination rule that decides when a malicious-prosecution claim can be brought at all.
Filing a Discrimination Charge (EEOC)The administrative step that must come before almost any federal employment-discrimination lawsuit - a charge filed with the Equal Employment Opportunity Commission or a state agency within a short statutory window, followed by a right-to-sue letter that starts the next clock.
Housing Discrimination (Fair Housing Act)The federal law making it unlawful to refuse housing, or set different terms, because of who someone is.
Prisoners' Rights and the Prison Litigation Reform ActThe constitutional protections that survive incarceration - against cruel and unusual conditions, deliberate indifference to medical needs, and punishment without process - and the federal statute that makes a prisoner exhaust the prison's own grievance system before any of them can be enforced in court.
Reasonable AccommodationA change to a job, workplace or housing rule that lets a person with a disability participate equally - required unless it imposes undue hardship.
Religious Freedom (RFRA and RLUIPA)The federal statutes that require government to justify any substantial burden on religious exercise by a compelling interest pursued in the least restrictive way - stronger than the constitutional rule, and the basis of most modern religious-liberty claims by prisoners, congregations and employers.
Section 1983 Civil Rights ClaimThe federal statute allowing someone to sue a state or local official personally for violating their constitutional rights.

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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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