Retaliation Legal Help:Protected Activity, Materially Adverse Action, and Recovery for Workplace Retaliation

Employee conduct protected by federal or state statute. Common types: complaining about discrimination or harassment, filing EEOC charge, participating in EEOC investigation, taking FMLA leave, filing workers comp, reporting safety violations to OSHA, whistleblowing about employer misconduct, refusing to commit illegal acts, exercising NLRA concerted activity rights, jury service, military service, voting.

Action by employer that would dissuade a reasonable employee from making the complaint. Burlington Northern v. White (2006) standard. Broader than traditional adverse employment action; can include actions outside employment context (transfers to less desirable locations, schedule changes, ostracism, undermining authority).

Adverse action because of protected activity. Most retaliation claims require but-for causation under University of Texas Southwestern v. Nassar (2013). Typically established through temporal proximity, but other evidence supports causation.

Retaliation claims regularly succeed when underlying claims fail. The temporal connection provides direct evidence; the underlying merits become less important when retaliation is established.

Title VII, ADA, ADEA, FMLA, FLSA, SOX, Dodd-Frank, NLRA, USERRA, OSHA, ERISA, and many state laws all have anti-retaliation provisions. Multiple potential claims often available.

Action would have dissuaded a reasonable employee from making or supporting a charge of discrimination. Subject to objective test from perspective of reasonable employee.

Title VII discrimination claims require adverse employment action affecting terms, conditions, or privileges of employment. Title VII retaliation does not have this limitation; broader scope of adverse actions.

Termination, demotion, denial of promotion, significant pay reduction, transfer to substantially less desirable location, schedule changes for the worse, exclusion from training opportunities, exclusion from meetings, ostracism by colleagues at supervisor's direction, loss of benefits, undermining authority, public criticism, hostile environment created by supervisor.

Petty slights, minor annoyances, simple lack of good manners not actionable. Standard requires materiality.

Same action may be adverse in some contexts but not others. Schedule change affecting parent with childcare obligations more adverse than for employee without.

Most other anti-retaliation provisions adopt similar standard. ADA, ADEA, FMLA, FLSA all follow Burlington Northern framework.

Some courts recognize post-employment retaliation. Negative references, blacklisting, lawsuits filed against former employee. Limited but available in some cases.

Adverse action within days or weeks of protected activity. Courts uniformly recognize as supporting causation. May alone establish prima facie case.

Adverse action within 1-3 months. Most courts recognize as supporting causation but may require additional evidence. Common timeframe for retaliation cases.

Adverse action 3+ months after protected activity. Most courts require additional evidence beyond temporal proximity. Patterns of intervening adverse acts can extend the relevant period.

Sequence of adverse actions following protected activity. Each new adverse action extends the relevant timeline. Pattern more compelling than single event.

Increased criticism, surveillance, or documentation following protected activity. Often precedes termination. Documents the building case for adverse action.

Person making adverse decision must have known about protected activity. Awareness can be inferred from circumstances or established directly. Without awareness, no causal connection.

Combination of temporal proximity plus pretext evidence (inconsistent reasons, deviations from policy) typically defeats summary judgment. Strong combined evidence.

Internal complaints, EEOC charges, FMLA leave records, workers comp filings, OSHA reports. Date and recipient documentation. Critical to establish protected activity occurred and decision-maker knew.

Evidence that person taking adverse action knew about protected activity. Direct knowledge or inference from circumstances. Required for causation.

Specific dates of protected activity and adverse action. Calendar entries, emails, meeting records. Days, weeks, or months matters.

Pre-protected-activity reviews vs post. Sudden shift after protected activity supports inference of retaliation.

Similarly situated employees who did not engage in protected activity and were treated differently. Same conduct, different outcomes supports retaliation.

Different reasons given for adverse action at different times. Inconsistency strongly supports pretext.

Process for adverse action deviating from normal procedures. Skipped steps, unusual speed, inadequate investigation.

Statements about employee's protected activity, complaints, leaves, or other protected conduct. Direct evidence when present.

Co-workers who can testify to changes in treatment after protected activity, decision-maker statements, or comparator information.

Emails between decision-makers, HR memoranda, supervisor communications. Often discoverable in litigation; can be devastating.