Retaliation has become the most frequently filed workplace complaint in the United States. According to the U.S. Equal Employment Opportunity Commission, 42,301 retaliation charges were filed in fiscal year 2024, representing 48% of all discrimination complaints. This marks the 15th consecutive year that retaliation was the most common charge filed with the EEOC.
The financial impact is substantial. The EEOC reports that $698 million was recovered for discrimination victims in fiscal year 2024, with retaliation claims comprising a significant portion. The agency's success rate in resolved retaliation lawsuits reached 97% in fiscal year 2023, demonstrating how seriously courts treat these violations.
Perhaps most concerning, research from the Economic Policy Institute indicates that 75% of workers who experience harassment never file a formal complaint specifically due to fear of retaliation. This suggests the true scope of workplace retaliation far exceeds the documented cases.
Protected Activities That Cannot Be Punished
Federal and state laws protect employees who engage in specific activities. Retaliation for any of these actions is illegal.
Filing Complaints and Reports:
Employees have the right to report discrimination, harassment, wage violations, safety hazards, and other illegal conduct. According to the Department of Labor, the Wage and Hour Division recovered $274 million in back wages for workers in fiscal year 2024, many involving workers who faced retaliation for reporting violations. Employees filing workers' compensation claims are protected under state laws.
Participating in Investigations:
Employees who testify in investigations, provide information to government agencies, or serve as witnesses in discrimination or harassment proceedings are protected, including cooperation with EEOC investigations, Department of Labor audits, and OSHA inspections.
Opposing Discriminatory Practices:
The law protects employees who complain about discrimination, refuse to follow discriminatory orders, resist sexual harassment, or speak out against biased policies in any way.
Requesting Accommodations:
Under the Americans with Disabilities Act (ADA), employees cannot be retaliated against for requesting disability accommodations. The Pregnant Workers Fairness Act, which took effect in June 2023, extends similar protections to pregnant workers. The FMLA protects employees who request or take family or medical leave.
Union and Collective Activities:
The National Labor Relations Act protects employees who discuss wages or working conditions with coworkers, organize or support unions, or engage in collective action. These protections, detailed in NLRB guidance on protected concerted activity, apply to all private sector employees regardless of union status.
Examples of Retaliatory Actions
Retaliation takes many forms, some obvious and others more subtle.
Direct Retaliation:
The most obvious forms include termination, demotion, pay reduction, suspension without pay, and denial of earned promotions.
Schedule-Based Retaliation:
For hourly and shift workers, schedule manipulation is particularly insidious. A restaurant server who reports wage violations might suddenly be scheduled only for slow lunch shifts instead of busy dinner shifts, drastically reducing tip income. According to the Economic Policy Institute's analysis of frontline workers, approximately 49% of hourly employees cannot afford to pay their utilities if they miss even one shift, making schedule reductions financially devastating.
Schedule-based retaliation also includes sudden shift time changes that conflict with childcare, elimination of previously offered overtime, deliberately unpredictable schedules, denying previously routine time-off requests, and forcing employees to work undesirable shifts as punishment.
Subtle Retaliation:
Covert forms include excluding employees from meetings or training, excessive micromanagement not applied to others, unjustified negativep erformance reviews, transferring employees to less desirable locations, isolation from coworkers, and removal of job responsibilities.
Post-Employment Retaliation:
Employers who provide negative references explicitly citing an employee's protected activity, interfere with unemployment benefit claims, or blacklist former employees are also engaging in illegal retaliation.
Legal Framework
Multiple federal laws prohibit workplace retaliation. Title VII of the Civil Rights Act prohibits retaliation against employees who oppose discrimination or participate in investigations involving race, color, religion, sex, or national origin discrimination. Similar protections exist under the Age Discrimination in Employment Act (ADEA) for workers age 40 and older, the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and the Genetic Information Nondiscrimination Act (GINA).
The Fair Labor Standards Act (FLSA) protects employees who file wage and hour complaints. The Department of Labor's enforcement data shows continuing prevalence of these violations.
OSHA's Section 11(c) protects employees who report safety hazards or refuse dangerous work conditions, though workers must file complaints within 30 days. Details are available through OSHA's whistleblower protection program.
The National Labor Relations Act (NLRA) protects concerted activities, including discussing wages with coworkers, as explained in NLRB guidance on protected concerted activity.
State laws often provide additional protections beyond federal requirements.
Unique Vulnerabilities for Frontline Workers
Shift workers and hourly employees face particular challenges when it comes to retaliation.
For employees living paycheck to paycheck, sudden schedule changes can create an immediate financial crisis. The global workforce includes approximately 2.7 billion frontline workers yet they often lack workplace protections available to salaried employees.
Frontline workers often receive verbal feedback rather than written reviews, making it harder to prove negative treatment represents retaliation. Schedule changes may not be documented, performance standards may be applied inconsistently, and promises about advancement may never appear in writing.
Workers in high-turnover industries know they're easily replaceable, creating fear of speaking up. Many live paycheck to paycheck with no financial cushion, and language barriers or immigration status may make some especially hesitant to assert their rights.
Costs to Employers
The consequences of workplace retaliation create substantial financial and operational risks for employers.
According to SHRM's analysis of employment litigation costs, the average employment discrimination settlement is $40,000, and this can vary significantly. Small to mid-sized businesses typically see settlements of $50,000 to $250,000, while large corporations may face awards exceeding $500,000 or reaching into the millions. Notable retaliation verdicts have resulted in judgments of $800,000, $1.6 million, and $4.6 million.
Damages can include back pay, front pay, lost benefits, emotional distress damages, punitive damages, and attorney's fees. Even when employers prevail, legal fees typically range from $50,000 to well over $1 million depending on case complexity.
Beyond direct costs, retaliation creates organizational damage. Employee morale decreases when workers see colleagues punished for raising concerns. The fear of retaliation reduces reporting of safety violations, harassment, and other issues. High turnover follows as both targeted employees and concerned coworkers seek employment elsewhere. Company reputation suffers as litigation becomes public.
Prevention Strategies
Organizations can substantially reduce retaliation risk through clear policies, consistent decision-making, and accountability systems.
Develop Clear Anti-Retaliation Policies:
Effective policies must be written in plain language, included in employee handbooks, posted in break rooms, available in languages spoken by the workforce, and reviewed during onboarding and training.
Train All Staff:
All employees should understand their rights, reporting procedures, and available protections. Managers need training on legal obligations, responding to concerns, and consequences of retaliation. HR staff requires training on conducting impartial investigations and recognizing subtle retaliation.
Establish Consistent Decision-Making:
Before taking adverse action against an employee who engaged in protected activity, ask: Are we holding this employee to stricter standards than others? Would we take this action if they hadn't engaged in protected activity? Do we have legitimate, documented, non-retaliatory reasons? If answers suggest potential retaliation, reconsider the action.
Create Safe Reporting Channels:
Employees need multiple ways to raise concerns, including HR, anonymous hotlines, and online systems, with clear investigation timelines and confidentiality assurances.
Conduct Thorough Investigations:
Respond promptly to retaliation allegations, typically within 24-48 hours. Investigations should be thorough, impartial, and well-documented, with confidentiality maintained to the greatest extent possible.
Monitor for Patterns:
HR should track adverse actions following complaints, watching for schedule changes, hour reductions, sudden negative reviews, or transfers after employees raise concerns.
Hold Managers Accountable:
Discipline managers who retaliate regardless of their seniority. Include handling of employee concerns in performance evaluations. The message must be clear: retaliation will not be tolerated at any level.
Guidance for Employees
Employees who experience or witness retaliation should take specific steps to protect their rights.
Document Everything:
Create a detailed timeline of protected activity and subsequent adverse actions, noting dates, times, what happened, and who was involved. Identify witnesses, compare current treatment to past treatment, and gather relevant emails, text messages, schedules, or performance reviews.
Report Internally First:
When safe, report retaliation through your company's complaint process. Follow procedures outlined in your handbook and keep copies of all reports and responses.
Know Filing Deadlines:
OSHA retaliation complaints must be filed within 30 days. EEOC charges generally must be filed within 180 days (or 300 days in states with anti-discrimination agencies). NLRB charges must be filed within 6 months. Missing deadlines can eliminate legal recourse.
File With the Appropriate Agency:
Contact the EEOC at 1-800-669-4000 or eeoc.gov for discrimination-related retaliation. Contact OSHA at 1-800-321-6742 or osha.gov/whistleblower for safety-related retaliation. Contact the DOL Wage and Hour Division at 1-866-487-9243 or dol.gov/whd for wage-related retaliation. Contact the NLRB at 1-844-762-6572 or nlrb.gov for union-related retaliation.
Consult an Employment Attorney:
Many employment attorneys work on contingency. An attorney can evaluate your situation, explain options, handle employer communications, and represent you in negotiations or litigation.
Building a Non-Retaliatory Culture
The most effective approach to preventing retaliation is building a workplace culture where employees feel safe raising concerns, transparency is valued over silence, accountability applies to everyone including leadership, and problems are addressed promptly rather than suppressed.
For businesses with shift workers and hourly employees, this means creating communication channels where employees can comfortably raise schedule concerns, pay questions, safety issues, or other problems without fear. Platforms that facilitate transparent communication and document decisions help ensure that concerns are heard and addressed fairly.
Organizations that get this right see significant benefits: early identification of problems before they escalate, higher employee retention and morale, reduced legal exposure, and stronger reputations as employers of choice.
Employees who speak up about problems are trying to help the organization, not hurt it. Treating them as allies rather than adversaries creates workplaces where everyone thrives.
