How to Prove a Retaliation Claim

You have hung in there with a toxic boss, but finally reached your breaking point.  You went to HR and complained, and despite the company’s “no retaliation” policy, you find that the boss has ratcheted up the heat and things have only gotten worse!  You wonder, “How can that be?”

Retaliation is the most frequently alleged basis of discrimination in federal litigation. The law is designed to ensure that the rights granted by the Equal Employment Opportunity Commission (EEOC) are enforceable.  If an employee is afraid to speak up about a problem, the protections against discrimination disappear. Hence, the basis for the retaliation claim.

But the law only protects you against illegal retaliation.  So, you need to know what that is before you go to HR.

Retaliation - in the legal sense of that word - occurs when an employer takes adverse action against an employee because that employee exercised their legal rights to be free from employment discrimination. The federal laws – including Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act – do not just prohibit discrimination based on race, sex, nationality, age, or disability; they also make it illegal for an employer to “punish” you for asserting those rights.

So, for example, if you complain that you feel you are being discriminated against based upon a Title VII protected characteristic, and then your boss or manager starts treating you harshly – this is illegal retaliation.  But if you go to HR and complain about everyday work problems or the manager’s style or how you disagree with the manager’s judgment, and then you start experiencing “retaliation,”  that may not rise to the level of legally protected activity.  If you are unlucky enough to work for a boss who is a jerk, as long as he is an equal opportunity jerk (meaning he is a jerk to everyone), he may get away with his toxicity if the company is willing to absorb the many costs associated with this type of poor management!

In evaluating cases, we ask clients to give us examples of behaviors that demonstrate why they believe the “retaliation” they are experiencing is connected to a Title VII protected characteristic.  In doing so, we look at the 3 elements needed to prove a retaliation claim:

1. Engage in Protected Activity

You engage in protected activity if you complain about illegal discrimination based upon a Title VII protected characteristic. The discrimination can be that which you experienced, or which you observed being directed towards others in the workplace.  If you filed an EEOC complaint about discrimination and then you experience ongoing or increased hostile behavior at work, this is going to be a strong retaliation claim.  

2. Adverse Action

The employer must have taken an action against you that would “dissuade a reasonable worker” from making or supporting a charge of discrimination. While the most obvious examples are firing or demotion, the U.S. Supreme Court has clarified that an action doesn’t have to be “ultimate” (like termination) to be retaliatory.  Other examples of adverse actions include increasing scrutiny or micromanagement, being excluded from work events that you would normally have been included in, changing your responsibilities, or getting an unjustified lower performance rating.

In the 2024 case, Muldrow v. City of St. Louis the U.S. Supreme Court significantly lowered the proof standard for employees to bring Title VII discrimination and retaliation claims.  Before this ruling, many lower courts required employees to prove that an employer’s action caused a “significant” or “material” disadvantage – such as a cut in pay, a rank demotion, or a loss of fringe benefits.  In Muldrow, this standard was lowered so that an employee needs only to show that they suffered “some harm” or a “simple injury.”

3. Causal Connection

Finally, we tie together how the retaliation you experienced is connected to your complaints of discrimination. The most common “business decision” justification used by employers for retaliatory actions is that the adverse action was taken based upon the employee’s  poor performance or was taken because the “job was eliminated.”  The key thing we look for is how close in time was the adverse action to the complaint?  When poor performance is alleged, we look to see what evidence there is of poor performance, and if it is credible.  We also look at how you were treated compared to your peers – which can be very telling.

If you have gone to HR and complained, gone through an investigation process and then been told, “we can’t substantiate your claims of discrimination,” don’t despair.  Retaliation is a separate claim.  Even if the underlying claim of discrimination is not proven, you can still have a very strong retaliation claim based upon how the employer reacted to you exercising your rights to complain.  Get your situation evaluated by an employment lawyer, and bring the documentation we outline in this post.  Then get that documentation on the record with a strong complaint.