Harassment, discrimination and retaliation claims surged to an all-time high in 2025, according to HR Acuity’s Tenth Annual Employee Relations Benchmark Study.
The threat of retaliation is real, and it prevents employees from speaking up. According to HR Acuity’s 2025 Workplace Harassment & Misconduct Research, 46% of employees cited fear of retaliation as the reason they did not report.
As an employer, the best thing you can do for your people is show that retaliation will not be tolerated.
Today, we’ll explain what retaliation is, how it manifests itself in the workplace and actions you can take to proactively address it before it impacts your organizational culture.
What is Retaliation in the Workplace?
Workplace retaliation occurs when an employer, or a supervisor or manager acting on its behalf, takes an adverse action against an employee because they engaged in a protected activity, such as reporting misconduct, participating in an investigation or requesting an accommodation. Retaliation can be overt, like termination or demotion, or subtle, like removing someone from a key project, cutting their hours or excluding them from opportunities.
Either way, it’s unacceptable, and is treated as a form of workplace discrimination under federal law. The statutes that prohibit discrimination, including Title VII, also protect employees who oppose it. It’s also illegal to retaliate against employees for taking leave under the Family and Medical Leave Act (FMLA) or asking for pay that’s warranted under the Fair Labor Standards Act (FLSA).
What Is a Non-Retaliation Policy?
A non-retaliation policy, sometimes called an anti-retaliation policy, is an employer’s written word that speaking up is safe. If someone flags a concern, reports misconduct or answers an investigator’s questions, the policy says their job, pay, assignments and reputation stay untouched because of it. That is the answer to what the policy of non retaliation really means in practice. It also sets the bar for managers, who know exactly what is expected of them in the days and weeks after a report lands on their desk. Without that clarity, the worry about what prevents employees from speaking up can win out. A strong policy covers:
- A definition of retaliation tied to reporting and investigations
- Who is protected (reporters, witnesses and investigation participants)
- Examples employees and managers will recognize
- Reporting routes that bypass a direct manager
- Confidentiality expectations
- Manager responsibilities after a report
- Consequences when retaliation is found
- How and when the policy is shared
What Is Considered Workplace Retaliation?
Anti-retaliation law covers any action that is materially adverse and could dissuade someone from making a complaint. Examples of retaliation include:
- Loss of pay
- Loss of job
- Demotion
- Job transfer
- Poor performance review
- Detrimental change of job duties
- Increasing scrutiny
- Verbal or physical abuse
- Malicious rumors
- Making threats to report the person to the police or immigration authorities
- Other actions that make one’s job more difficult
For a closer look at how courts decide what counts as materially adverse, see three must-know facts about workplace retaliation.
History of What Defines Workplace Retaliation
In a 2006 case, the U.S. Supreme Court broadened what qualifies as retaliation. A forklift operator named Sheila White complained about gender-based discrimination from her immediate supervisor, who was suspended for 10 days and required to attend sexual harassment training.
The employer, Burlington Northern & Santa Fe Railway, removed White from forklift duty and gave her standard track laborer tasks. She filed a complaint with the Equal Employment Opportunity Commission (EEOC), saying the reassignment amounted to retaliation and gender discrimination. Burlington suspended her without pay for insubordination. Later, Burlington reinstated her and awarded her back pay for the 37 days she was suspended. The suspension led to another EEOC retaliation charge.
Warning Signs of Retaliation
Retaliation often it shows up as a series of seemingly ordinary decisions that all point the same direction after someone speaks up. Here’s how to spot the pattern:
- Changes to work. Less desirable shifts, projects or accounts, or being dropped from meetings and email threads.
- New criticism. A first performance warning, tighter deadlines or closer scrutiny of someone with a clean record.
- Comments from the manager. References to “drama,” questions about who else is talking or suggestions to move on.
- Lost opportunities. Delayed raises, promotions or training.
- Colleague behavior. Coworkers avoiding the reporter, or witnesses suddenly unwilling to talk.
How to Prevent Retaliation in the Workplace
Defending these kinds of claims is costly and time-consuming, and it can be harmful to the company’s public reputation. Take these steps to help your organization avoid retaliation claims:
- Provide a reliable avenue for submitting complaints or concerns.
- Distribute your organization’s anti-retaliation policy to all new hires.
- Train managers and supervisors on workplace ethics and laws banning retaliation and discrimination.
- Make sure employees understand that retaliation will not be tolerated and that violators will be disciplined.
- Respond to allegations immediately and investigate quickly.
- Communicate with the person who complained or reported wrongdoing and show you are taking the complaint seriously; this is an example of good investigation protocol in general.
- Reduce gossip by communicating facts to the workforce.
- Establish safeguards against post-employment retaliation.
- Survey employees on their attitudes regarding retaliation.
- Document everything. Take notes about the steps you regularly take to prevent retaliation.
- Keep confidential the information you receive about complaints. Retaliation is less likely to happen if fewer people know about the complaint.
- Ensure claims of retaliation are effectively tracked in the Employee Relations Management System.
How to Protect Former Employees from Retaliation
Remember that employer liability does not end when the worker leaves the company. Because most anti-retaliation statutes protect former employees, employers must be careful when responding to reference requests, challenging unemployment compensation, filing claims against a former employee or evaluating a former employee who has reapplied for employment. If unfavorable to the former employee, these and other post-employment actions could result in a retaliation lawsuit.
In a 1997 case, the U.S. Supreme Court ruled that the term “employee” includes former employees. Charles Robinson filed a discrimination complaint with the EEOC, saying Shell Oil Co. fired him from a sales job for being black. After applying for a job with another company, he claimed Shell gave him a negative job reference in retaliation for the EEOC charge.
The purpose of the anti-retaliation laws is to ensure that individuals feel free to file legitimate and appropriate claims without fear of financial or physical harm. This protects the workers, but it’s also beneficial for employers to show that they treat all employees fairly. Avoiding discrimination and retaliation helps employers bolster employee morale, productivity and retention, all of which bring cost savings.
NOTE: The information contained in this blog is general information, not legal advice. Always consult your general counsel with questions about retaliation and how it applies to your organization.
