Overview

Retaliation Defined:

Retaliation occurs when an employer takes an adverse employment action (i.e., firing, demotion, etc.) against an individual who engages in protected activity by opposing discrimination or participating in an investigation regarding discrimination.

Potential Damages Available:

  • Backpay
  • Front pay
  • Attorney’s fees and costs
  • Punitive damages
  • Compensatory damages
  • Injunctive relief including reinstatement
  • Liquidated damages

Minimum Employees:

  • Federal law: depends on applicable discrimination law
  • New York State/City law: 4+

Statute of limitations:

  • Federal law: depends on applicable discrimination law
  • New York State/City law:
    • 3 years in court; or
    • 1 year with administrative agency

What Is Employment Retaliation?

All city, state and federal anti-discrimination laws prohibit employers from retaliating against employees.

Retaliation occurs when an employer punishes an employee for complaining internally (within the company) or to an outside agency or court about discrimination or harassment suffered by himself or others. This is true even if the complaint made by the employee is ultimately determined to be unfounded, so long as the complaint was initially made in good faith.

Visit our blog for a comparison of the key anti-retaliation laws, including a full breakdown of the damages (remedies) available under each law and applicable standards, requirements and procedures.

Retaliation also occurs when an employer punishes an employee for cooperating with an investigation or participating in agency or court proceedings concerning discrimination or harassment. (Note, however, that federal law only protects an individual's participation in an investigation once a formal complaint has been filed with the Equal Employment Opportunity Commission (EEOC)).

An employer retaliates by taking an adverse employment action against an employee such as firing or demoting the individual.

Examples of retaliation may include:

  • An employee getting fired shortly (few weeks or months) after complaining to human resources regarding religious discrimination that he suffered
  • An employee being demoted shortly after complaining to his supervisor regarding sexual harassment of a co-worker
  • An employee receiving a negative performance evaluation after participating in an investigation of a discrimination complaint filed with the EEOC, while his actual work performance has remained good
  • A negative reference from a former employer may be retaliatory

In some cases, retaliation may be very obvious. However, in most cases it is not as clear. Where it is unclear that retaliation has occurred, all circumstances of the situation are taken into account and an employer would only be liable for retaliation where an individual can prove that the employer's action would have been "materially adverse" to the reasonable employee or applicant, such that it would have dissuaded him or her from making or supporting a charge of discrimination. There must be a significant – not trivial — harm. "Petty slights or minor annoyances" are insufficient to meet this standard. Note that New York City law applies more liberal standards for employees to prove retaliation.

Contact Fisher Taubenfeld LLP

We offer a free and confidential phone consultation in which you can discuss your workplace mistreatment. Send an email or call 646-741-3490, toll free 866-654-0343, to speak with an experienced New York workplace retaliation lawyer.