Retaliation Claims: When Firing Back Is Illegal

Retaliation claims are the most frequently filed type of employment discrimination charge with the EEOC — and for good reason. When employees exercise their legal rights, some employers respond by making their lives difficult or firing them. That response is often illegal.

What Is Retaliation?

Retaliation occurs when an employer takes an "adverse action" against an employee because the employee engaged in "protected activity." Both elements must be present.

Protected Activity

Protected activity includes a wide range of actions employees are legally entitled to take:

• Filing an EEOC charge or complaint with a state civil rights agency
• Participating in an EEOC investigation or lawsuit (even as a witness)
• Reporting discrimination or harassment to HR or management
• Requesting a reasonable accommodation for a disability or religion
• Taking FMLA or other legally protected leave
• Reporting workplace safety violations to OSHA
• Reporting illegal activity (whistleblowing)
• Refusing to participate in illegal activity
• Filing a workers' compensation claim

Adverse Action

An adverse action is anything that would dissuade a reasonable employee from engaging in protected activity. Termination is the most obvious example, but adverse actions also include:

• Demotion or reduction in pay
• Negative performance reviews that didn't exist before
• Sudden increase in scrutiny or discipline
• Transfer to a less desirable position or location
• Exclusion from meetings, projects, or opportunities
• Hostile work environment following a complaint

The Timing Factor

Suspicious timing is one of the most powerful pieces of evidence in a retaliation case. If you filed a complaint on Monday and were fired on Friday, that proximity is hard for an employer to explain away. Courts recognize "temporal proximity" as circumstantial evidence of retaliatory intent.

That said, timing alone is rarely sufficient. You'll want to pair it with other evidence — positive performance history, no prior discipline, comparator employees who weren't fired, or direct statements suggesting retaliatory motive.

The Causation Requirement

You must show that your protected activity was the reason — or at least a motivating factor — for the adverse action. Employers will typically claim the action was for a legitimate, non-retaliatory reason. Your job is to show that reason is pretextual.

Retaliation Deadlines

The same EEOC filing deadlines apply to retaliation claims as to discrimination claims: 180 days in non-deferral states, 300 days in deferral states. The clock starts on the date of the retaliatory act — not the date of the original protected activity.