Retaliation claims frequently succeed where the underlying discrimination claim does not, because the elements are simpler and the evidence is more direct.

Elements. Protected activity; an adverse action; and a causal connection.

Protected activity includes complaints, participation in investigations, agency charges, and in most statutes a good faith belief that the conduct complained of was unlawful, whether or not it was.

Adverse action is broader than in discrimination claims: any action that might dissuade a reasonable worker from making or supporting a charge. Schedule changes, exclusion from meetings, reassignment and negative references have qualified.

Causation. Some statutes require but-for causation, others a motivating factor. Temporal proximity supports an inference where very close in time; longer gaps require additional evidence such as a pattern of antagonism.

Where employers create these claims. Telling the complainant to keep it confidential and then treating them differently; conducting an investigation that focuses on the complainant’s own conduct; a manager learning of the complaint and altering assignments; and separating the complainant rather than the respondent.

Controls. Instruct managers in writing on the day a complaint is received; require approval before any change to the complainant’s employment for a defined period; and document the business reason for any change that does occur.