New York Employment Retaliation Frequently Asked Questions FAQS

If you believe your employer retaliated against you after you reported discrimination or harassment, complained to Human Resources, filed an EEOC charge, participated in an investigation, served as a witness, or exercised another legally protected right, you may have a claim for employment retaliation.

The following frequently asked questions address New York employment retaliation, workplace retaliation, Title VII retaliation, sexual harassment retaliation, retaliatory termination, EEOC retaliation, and wage-and-hour retaliation, including FLSA and overtime retaliation.

What Is Employment Retaliation?

Employment retaliation generally occurs when an employer takes a materially adverse action against an employee because the employee engaged in legally protected activity.

Under federal employment discrimination laws, a retaliation claim generally involves protected activity, a materially adverse action, and a causal connection between the protected activity and the employer’s action.

Retaliation is not limited to termination. Depending on the circumstances, it may include demotion, discipline, reduced compensation or hours, denial of opportunities, increased scrutiny, harassment, undesirable assignments, threats, or other conduct that could discourage a reasonable person from engaging in protected activity.

What Counts as Protected Activity?

Protected activity can include reporting or opposing discrimination or harassment, complaining to Human Resources or management, filing an EEOC charge, participating in an employment investigation, providing information, serving as a witness, or participating in an employment discrimination proceeding.

A complaint does not necessarily have to use specific legal terminology. The substance of the complaint and the applicable law are important. Federal EEO law generally protects both opposing unlawful discrimination and participating in an EEO process.

Can My Employer Retaliate Against Me for Complaining About Sexual Harassment?

Potentially, yes.

Complaining about sexual harassment may constitute protected activity under federal, New York State, or New York City law. Sexual harassment retaliation may include termination, demotion, discipline, reduced hours, undesirable assignments, exclusion from workplace opportunities, increased scrutiny, threats, harassment, or other materially adverse treatment.

Whether particular conduct constitutes unlawful retaliation depends on the facts and applicable law.

Can I Be Fired for Reporting Discrimination?

Generally, an employer cannot terminate an employee because the employee engaged in protected activity.

An employer may, however, contend that a termination resulted from a legitimate, non-retaliatory reason such as poor performance, misconduct, restructuring, or another legitimate business reason.

Evidence in a retaliatory termination case may include timing, statements by supervisors, changes in treatment, performance records, inconsistent explanations, and evidence concerning similarly situated employees.

Can I Be Retaliated Against for Filing an EEOC Complaint or Being a Witness?

Potentially, yes.

Filing an EEOC charge and participating in an EEOC investigation or proceeding can constitute protected activity. Protection can also extend to employees who serve as witnesses or otherwise participate in an employment discrimination investigation or proceeding.

An employee does not necessarily have to be the person who originally complained about discrimination to have protection against retaliation.

Can I Be Retaliated Against for Complaining About Unpaid Overtime?

Potentially, yes.

Federal and New York wage-and-hour laws contain anti-retaliation protections that may apply when employees complain about unpaid wages, overtime, minimum wage violations, misclassification, or other wage-and-hour violations.

Depending on the circumstances, an employer may not lawfully terminate, discipline, reduce hours, or otherwise retaliate against an employee because the employee exercised rights protected by applicable wage-and-hour law.

FLSA retaliation and overtime retaliation claims can involve legal standards that differ from Title VII retaliation claims, so the applicable statute and circumstances should be evaluated.

Can Retaliation Occur If I Was Not Fired?

Yes.

Termination is only one possible form of workplace retaliation. Depending on the circumstances, retaliation may include:

• Demotion or discipline;
• Reduced pay or hours;
• Negative performance evaluations;
• Denial of promotion or professional opportunities;
• Removal of responsibilities;
• Unfavorable assignments;
• Increased or unusual scrutiny;
• Threats or intimidation; or
• Retaliatory harassment.

Under federal EEO law, an action may be materially adverse when it could deter a reasonable person from engaging in protected activity. The circumstances of each case are important.

How Do I Prove Workplace Retaliation?

A retaliation claim generally requires evidence of protected activity, a materially adverse action, and the required causal connection between the two.

Relevant evidence may include:

• The date and substance of the complaint;
• Who received or knew about the complaint;
• Emails, texts, or other communications;
• Performance evaluations and disciplinary records;
• Statements by supervisors or decision-makers;
• Changes in treatment or working conditions;
• Evidence concerning similarly situated employees;
• Inconsistent explanations for an employment decision; and
• The timing between protected activity and the adverse action.

Timing can be important evidence, but timing alone does not necessarily establish retaliation. The evidence must be evaluated as a whole.

What If My Employer Says I Was Fired for Poor Performance?

An employer may defend a retaliation claim by asserting that it took the challenged action for a legitimate, non-retaliatory reason.

The credibility of that explanation can become important. Evidence that performance concerns were not documented before the complaint, discipline suddenly escalated afterward, similarly situated employees were treated differently, or the employer provided inconsistent explanations may be relevant to whether the stated reason was pretextual.

Can I Have a Retaliation Claim Even If My Discrimination Complaint Was Unsuccessful?

Potentially, yes.

A retaliation claim and an underlying discrimination claim are separate legal issues. Under federal EEO law, participation in an EEO investigation or proceeding may remain protected even when the underlying discrimination allegation is ultimately unsuccessful or untimely.

Whether an employee has a viable retaliation claim depends on the protected activity, the employer’s subsequent conduct, causation, and the applicable law.

Does New York Law Protect Employees From Retaliation?

Yes.

New York employees may have protection under federal employment laws, the New York State Human Rights Law, the New York City Human Rights Law, and other New York employment statutes.

The applicable protections and filing requirements depend on the nature of the complaint and the circumstances. Retaliation involving discrimination may be governed by different provisions than retaliation involving wages, overtime, accommodations, or another protected right.

Can I Sue My Employer for Retaliation?

Potentially.

Whether you can pursue an employment retaliation claim depends on the nature of your protected activity, the employer’s conduct, evidence connecting the protected activity to the adverse action, the applicable law, and any administrative filing requirements or deadlines.

Federal, New York State, and New York City retaliation claims can involve different procedures and deadlines. Prompt legal advice may therefore be important.

What Should I Do If I Think My Employer Is Retaliating Against Me?

Consider preserving evidence you are legally permitted to retain, including emails, texts, performance evaluations, disciplinary notices, written complaints, schedules, compensation records, and documents showing changes in your duties or working conditions.

Create a chronological record of when you complained, what you reported, who received the complaint, who knew about it, and what happened afterward.

Do not destroy, alter, or improperly remove confidential company information.

How Long Do I Have to File a Retaliation Claim?

There is no single deadline that applies to every employment retaliation claim.

The applicable deadline can depend on the law involved, the type of retaliation, the employer, where the conduct occurred, and whether an administrative filing is required before filing a lawsuit.

Because missing an applicable deadline can affect your ability to pursue a claim, you should consider obtaining legal advice promptly.

Should I Speak With a New York Employment Retaliation Attorney?

If you believe your employer fired, demoted, disciplined, harassed, reduced your hours, denied you an opportunity, or otherwise treated you adversely after you reported discrimination or sexual harassment, filed an EEOC charge, participated in an investigation, served as a witness, or complained about unpaid wages or overtime, an employment attorney can evaluate the circumstances and identify potentially applicable laws and deadlines.

The Law Office of Joseph Kilada represents employees and management in matters involving employment retaliation, workplace retaliation, sexual harassment, discrimination, Title VII claims, EEOC proceedings, FLSA wage-and-hour disputes, overtime litigation, and other employment matters.

Joseph F. Kilada, Esq. represents clients throughout New York City, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, as well as Nassau County and Suffolk County on Long Island.

If you believe you have experienced workplace retaliation, retaliation for reporting discrimination or sexual harassment, or retaliation for asserting wage-and-hour rights, contact the Law Office of Joseph Kilada to discuss your circumstances and learn more about your legal options.