Retaliation: the claim that outlives the original one
An employee can lose the underlying discrimination claim and win the retaliation claim. Employers underestimate this constantly.
Esshaki Legal Media TeamCurrent as of January 2026
Retaliation claims are among the most common employment claims and among the
most winnable, because they do not require the underlying complaint to have been
correct.
The usual structure has three elements: the employee engaged in protected
activity, suffered an adverse action, and there is a causal connection
between them.
Protected activity is broader than people expect. Filing a charge is
obvious; so is complaining internally about conduct the employee reasonably
believes is unlawful, participating in someone else’s investigation, or
requesting an accommodation. The belief need only be reasonable — an employee
whose discrimination complaint is ultimately unfounded is still protected from
being punished for making it.
Adverse action is also broader than termination. Anything that would
dissuade a reasonable worker from complaining can qualify: a demotion, a
schedule change, exclusion from meetings, a sudden negative review after years
of good ones.
Causation is usually proved by timing and by change. An employee with five
years of strong reviews who is written up twice in the month after complaining
has a case built almost entirely from the employer’s own documents.
The lesson for employers is that the response to a complaint is more likely to
create liability than the complaint itself. Once a complaint is made, every
subsequent decision about that employee needs a documented, independent reason.