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Retaliation

Workplace Retaliation: What It Is and How to Protect Yourself

Retaliation is one of the most common employment law claims in New York. If your employer punished you for reporting discrimination, filing a complaint, or exercising a legal right, you may have a strong case.

7 min read
·Written by Sean O'Hara, Employment Attorney

What Is Retaliation?

Retaliation occurs when an employer takes an adverse action against an employee because the employee engaged in protected activity. Protected activity includes: reporting discrimination or harassment to a supervisor or HR, filing a complaint with the EEOC, NYSDHR, or NYC Commission on Human Rights, participating in an investigation or lawsuit, requesting a reasonable accommodation for a disability or religious practice, taking protected leave under the FMLA or New York Paid Family Leave Law, and reporting wage theft or other labor law violations.

Adverse actions include termination, demotion, pay cuts, schedule changes, negative performance reviews, reassignment to less desirable duties, and any other action that would dissuade a reasonable employee from engaging in protected activity.

The Timing Problem

Retaliation often follows protected activity quickly — a termination two weeks after an HR complaint, a demotion the month after an EEOC charge. Courts and agencies recognize that close temporal proximity between protected activity and an adverse action is evidence of retaliation.

Employers know this, so they sometimes delay retaliation or manufacture a pretext — a sudden performance problem, a policy violation that was never enforced before. An experienced employment attorney can identify these patterns and build a case around them.

Constructive Discharge

Not all retaliation ends in a formal termination. Constructive discharge occurs when an employer makes working conditions so intolerable that a reasonable employee would feel compelled to resign. Courts treat a constructive discharge as a termination for legal purposes.

If you resigned because your employer made your job unbearable after you engaged in protected activity, you may still have a retaliation claim. Document the conditions that led to your resignation and contact an attorney before too much time passes.

Filing Deadlines and What to Do

Retaliation claims follow the same deadlines as the underlying discrimination or harassment claims. Under the NYCHRL, you have three years. Under federal law, you generally have 300 days to file with the EEOC.

Document everything: the protected activity you engaged in, the adverse action that followed, the timing, and any statements by supervisors or HR. Contact an employment attorney promptly — retaliation claims are strongest when the evidence is fresh and the deadlines have not run.

Disclaimer: This guide is for general informational purposes only and does not constitute legal advice. Reading this material does not create an attorney-client relationship. Laws change; consult an attorney about your specific situation.

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