Reporting sexual harassment takes courage—and employers who punish employees for speaking up face serious legal consequences. Retaliation claims often succeed even when underlying harassment claims don't, making retaliation protection a powerful tool for employees.
What Is Retaliation?
Retaliation occurs when an employer takes adverse action against an employee for engaging in protected activity—such as reporting sexual harassment. The law prohibits employers from punishing employees who exercise their legal rights, even if the harassment complaint ultimately isn't proven.
Protected Activity
Protected activities that trigger retaliation protection include: reporting harassment internally to supervisors or HR, filing EEOC or state agency charges, participating in harassment investigations, testifying or providing statements in harassment proceedings, opposing harassment of coworkers, and refusing sexual advances.
You don't have to be right about the harassment to be protected—your complaint must simply be made in good faith.
What Constitutes Retaliation
Adverse actions that may constitute retaliation include: termination or layoff, demotion or reduction in responsibilities, pay cuts or denial of raises, negative performance reviews without basis, transfer to undesirable positions or locations, schedule changes affecting work-life balance, exclusion from meetings or opportunities, increased scrutiny or micromanagement, and hostile treatment creating difficult working conditions.
Any action that would dissuade a reasonable employee from making a complaint can be retaliation.
Proving Retaliation
To prove retaliation, you typically must show:
1. You engaged in protected activity (made a harassment complaint).
2. Your employer took adverse action against you.
3. There's a causal connection between your complaint and the adverse action.
Timing is powerful evidence—if adverse action closely follows your complaint, that suggests causation. Other evidence includes statements by managers about your complaint, different treatment compared to employees who didn't complain, departure from normal procedures, and pretextual explanations for the adverse action.
Employer Defenses
Employers typically claim legitimate, non-retaliatory reasons for their actions—performance problems, policy violations, or business necessity. You must then show these reasons are pretextual (not the real reasons). Evidence of pretext includes timing, inconsistent explanations, evidence the stated reason is false, and treatment different from similarly-situated employees.
Retaliation vs. Harassment Claims
Retaliation claims are often stronger than harassment claims. Harassment requires proving severe or pervasive conduct; retaliation requires proving adverse action after complaint. Employers who react badly to complaints create retaliation liability even if the harassment itself was borderline.
Many plaintiffs win retaliation claims while losing underlying harassment claims.
Remedies for Retaliation
Successful retaliation claims can recover: reinstatement to your former position, back pay for lost wages, front pay for future lost earnings, compensatory damages for emotional distress, punitive damages for willful retaliation, and attorney fees in many jurisdictions.
Time Limits
Retaliation claims have filing deadlines. For federal claims, you must file an EEOC charge within 180-300 days of the retaliatory act. State deadlines vary. Missing these deadlines bars your claim—act promptly.
Documenting Retaliation
Build your case with documentation: Save your original harassment complaint. Document the timeline of events—when you complained and when adverse actions occurred. Keep copies of performance reviews before and after your complaint. Save communications showing employer knowledge of your complaint. Document any statements suggesting retaliation. Note witnesses to retaliatory conduct.
Continuing to Work
If you face retaliation, don't quit without legal advice. Quitting may affect your claims and damages. Document retaliatory treatment while continuing to work if possible. Consult an attorney about your options.
Getting Legal Help
Retaliation cases require careful documentation and legal strategy. An employment attorney can help prove the connection between your complaint and adverse treatment, counter employer defenses, and pursue maximum compensation. Most offer free consultations and handle cases on contingency.