Why Retaliation Tops the List of EEOC Charges

When employers think about discrimination claims, they often focus on hiring, firing and pay decisions. But the most common allegation in charges filed with the Equal Employment Opportunity Commission is retaliation. It has topped the list for more than a decade, ahead of race, disability and sex discrimination.

Retaliation claims are common partly because they are easy to trigger. A manager who reacts badly to a complaint can create legal exposure even if the complaint itself had no merit.

What counts as protected activity

Federal anti-discrimination laws protect employees who engage in protected activity. That includes filing a charge, participating in an investigation or lawsuit, and opposing practices they reasonably believe are discriminatory, such as complaining to a supervisor about harassment.

Requesting a reasonable accommodation for a disability or religious practice is also protected. So is requesting accommodation under the Pregnant Workers Fairness Act, covered in our PWFA guide.

Other laws add protections. Taking FMLA leave is protected, as explained in our FMLA guide. Raising wage and hour concerns is protected under the Fair Labor Standards Act. Reporting safety hazards is protected under OSHA. Discussing pay or working conditions with coworkers is generally protected under the National Labor Relations Act.

What counts as retaliation

Retaliation is broader than firing. In Burlington Northern and Santa Fe Railway Co. v. White, decided in 2006, the Supreme Court held that retaliation includes any materially adverse action that might well dissuade a reasonable worker from making or supporting a charge of discrimination.

Under that standard, retaliation can include demotions, schedule changes, reassignment to less desirable work, exclusion from meetings, increased scrutiny, negative evaluations and threats. Actions outside the workplace can count too.

The EEOC enforcement guidance on retaliation offers many examples, from moving an employee to a less convenient shift to giving an unjustified negative reference to a prospective employer. Even actions that seem minor can count if they would discourage a reasonable person from speaking up.

Timing matters. An adverse action that closely follows a complaint can suggest a connection, although timing alone does not prove retaliation.

Why retaliation claims succeed

An employee does not have to prove the original complaint was correct. As long as the employee reasonably and in good faith believed the conduct was unlawful, the complaint is protected. That means an employer can defeat a discrimination claim and still lose on retaliation.

Retaliation claims are also easy for juries to understand. A story about a worker who complained and was then punished resonates in a way that technical discrimination arguments sometimes do not.

How managers create risk

Most retaliation problems start with a manager's natural reaction. Being accused of discrimination or harassment feels personal. A manager may become cold toward the employee, scrutinize their work more closely or exclude them from opportunities, sometimes without realizing it.

Managers may also share information about a complaint with others, which can lead to coworker hostility. Employers can be responsible for coworker retaliation when they know about it and fail to act.

Retaliation can also happen during layoffs and reorganizations. When an employee who recently complained is included in a reduction, the selection criteria will be examined closely. Using clear, objective criteria applied the same way to everyone is the best protection.

Preventing retaliation

Train managers specifically on retaliation. Explain what protected activity looks like, what actions can be retaliatory and how to respond to complaints. Training on manager behavior, explored in our report on manager coaching, pays off here.

Separate complaints from decisions. When an employee who has complained faces discipline or other adverse action, have HR review the decision before it is final. Make sure the reasons are documented, legitimate and consistent with how other employees are treated.

Document performance issues as they occur. Problems that appear in writing only after a complaint look suspicious. Consistent documentation protects both employees and employers.

Follow up after investigations. Check in with employees who complained and with witnesses to see whether they have experienced any negative treatment.

Keep complaints confidential to the extent possible. Share details only with those who need them to investigate or resolve the issue, and remind everyone involved that retaliation is prohibited.

Retaliation claims are among the most preventable legal risks employers face. Most come down to how managers respond in the days and weeks after someone speaks up.