Retaliation has been the most commonly filed charge with the EEOC since 2009 and its share continues to grow. Several factors explain this dominance:

• It attaches to every other charge type — When an employee files a race discrimination charge and is then fired, the firing itself becomes a separate retaliation claim. A single workplace dispute can generate both a substantive discrimination charge and a retaliation charge. This multiplier effect means retaliation appears in more than half of all EEOC filings.
• Easier to prove than underlying discrimination — Proving race or sex discrimination requires establishing that the employer was motivated by a protected characteristic. Proving retaliation requires establishing that the employer was motivated by the employee's complaint about discrimination. The timeline of events (complaint followed by adverse action) often provides stronger circumstantial evidence than is available for the underlying discrimination itself.
• Employers react predictably — When employees complain about discrimination, many employers perceive the complaining employee as a troublemaker, a legal liability, or disloyal. This perception frequently leads to exactly the kind of adverse treatment that constitutes retaliation. The impulse to punish complainers is so common that it generates an enormous volume of legitimate retaliation claims.
• Broad scope of protected activity — Protected activity includes not just filing a formal EEOC charge but also informal complaints, verbal objections to supervisors, emails raising concerns, refusing to participate in discriminatory conduct, and cooperating with investigations. Many employees engage in protected activity without even realizing it, expanding the universe of potential retaliation claims.
• Broad scope of adverse actions — After Burlington Northern & Santa Fe Railway Co. v. White (2006), adverse action is not limited to tangible employment actions like termination or demotion. It includes any employer action that would dissuade a reasonable worker from complaining, such as schedule changes, reassignments, exclusion from meetings, or increased scrutiny.

Not every workplace complaint constitutes protected activity. To qualify, the complaint must be connected to conduct that the employee reasonably believes violates anti-discrimination law. The following do not typically qualify:

• General workplace grievances — Complaining about a rude boss, unfair workload, or bad management without any connection to a protected characteristic (race, sex, age, disability, etc.) is not protected activity.
• Complaints about personal conflicts — A personality clash with a supervisor or coworker, absent any discriminatory element, does not constitute opposition to an unlawful employment practice.
• Vague or generic complaints — Saying "this workplace is toxic" or "I'm being treated unfairly" without connecting the complaint to a protected characteristic may be too vague to constitute protected activity. Courts look for whether the employer was put on notice that the complaint concerned legally prohibited discrimination.
• Complaints about lawful employer conduct — If the employee's complaint is about conduct that no reasonable person could believe constitutes discrimination (e.g., complaining about a dress code that applies equally to everyone), it is not protected opposition activity.
• Self-serving complaints to shield poor performance — Courts are skeptical of discrimination complaints filed immediately after an employee receives a negative performance review or is placed on a performance improvement plan, particularly when there is no prior history of complaints. However, the timing alone does not disqualify the complaint from protected status.
• Illegal activity during opposition — While opposing discrimination is protected, the manner of opposition must be reasonable. Stealing confidential documents, recording conversations illegally, or threatening violence to "prove" discrimination is not protected.

The Burlington Northern Court explicitly stated that the anti-retaliation provision does not protect against "petty slights, minor annoyances, and simple lack of good manners." The question is always whether the employer's action rises above the level of trivial inconvenience to the level of material adversity that would deter a reasonable worker from exercising their rights.

Typically NOT Adverse Actions (Petty Slights)

• A supervisor who stops making small talk or being friendly
• Being left off a lunch invitation or office social event
• A single negative comment or criticism
• A minor change in office location (e.g., moved to a different desk in the same area)
• Not receiving a "thank you" for completing a project
• Temporary increase in workload during a busy period that affects everyone

When Petty Slights Accumulate Into Adverse Action

While individual actions may each be a "petty slight," courts have recognized that a pattern of multiple retaliatory acts can collectively constitute a materially adverse action even if no single act alone would qualify. This is sometimes called the "mosaic" theory of retaliation. An employer who, after receiving a discrimination complaint, simultaneously gives the employee a worse schedule, excludes them from meetings, subjects them to heightened scrutiny, and gives them a negative review may be retaliating even if each action in isolation might be dismissed as minor.

In Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), the Supreme Court addressed whether an employer can retaliate against someone other than the employee who engaged in protected activity. The facts were striking: Miriam Regalado filed an EEOC charge of sex discrimination against their shared employer. Three weeks later, her fiancé, Eric Thompson, was fired.

The Court's Holding

The Supreme Court unanimously held that Thompson had standing to sue for retaliation. The Court reasoned that firing an employee's close family member or fiancé is an action that would obviously dissuade a reasonable worker from filing a charge of discrimination. If employers could retaliate against family members with impunity, the anti-retaliation protections would be severely undermined because employees would fear filing charges knowing their loved ones could be targeted.

Scope of Third-Party Retaliation

• Close family members — Spouses, fiancé(e)s, parents, and children of the person who engaged in protected activity are clearly within the zone of protection.
• Close friends and associates — The Court declined to draw a bright line, stating that the determination should be case-by-case. Close personal relationships generally qualify.
• Mere acquaintances — The Court indicated that firing a "mere acquaintance" of the charging party would likely not be actionable, but left the boundaries open.

Because direct evidence of retaliatory motive is rare (employers rarely admit they are retaliating), plaintiffs typically rely on circumstantial evidence to establish causation. The most common forms of circumstantial evidence include:

Temporal Proximity

Close timing between the protected activity and the adverse action is the most commonly cited evidence of causation. If an employee files an EEOC charge on Monday and is fired on Friday, the timing alone creates a strong inference of retaliation.

• Very close timing (days to weeks) — Most courts hold that temporal proximity of a few days to a few weeks is sufficient, standing alone, to establish the causal connection element of the prima facie case.
• Moderate timing (1-3 months) — May be sufficient depending on additional circumstantial evidence, but most courts require more than timing alone.
• Extended timing (3+ months) — Temporal proximity alone is generally insufficient after three months. As the Supreme Court noted in Clark County School District v. Breeden, 532 U.S. 268 (2001), a 20-month gap between protected activity and adverse action, without more, is insufficient to establish causation.

Pattern Evidence

Evidence showing that the employer treats employees who engage in protected activity worse than similarly situated employees who do not complain. If three employees were on performance improvement plans but only the one who filed an EEOC charge was terminated, the pattern supports causation.

Shifting Explanations

When an employer provides different or inconsistent reasons for the adverse action at different stages (e.g., one reason in the termination letter, a different reason in the EEOC position statement, and yet another reason at trial), the shifting explanations suggest that none of the stated reasons is the true reason, supporting an inference of pretext and retaliation.

Comparator Evidence

Evidence that similarly situated employees who did not engage in protected activity were treated more favorably. If two employees committed the same policy violation but only the one who had recently filed an EEOC charge was terminated while the other received a warning, the disparity supports causation.

Cat's Paw Theory (Staub v. Proctor Hospital, 2011)

Under the "cat's paw" theory from Staub v. Proctor Hospital, 562 U.S. 411 (2011), an employer can be liable for retaliation when a supervisor with retaliatory intent influenced the decision-maker, even if the decision-maker personally had no retaliatory motive. The term comes from the Aesop fable in which a monkey uses a cat's paw to pull chestnuts from a fire. If a retaliatory supervisor provides biased information to an unknowing HR manager who then approves the termination, the employer is still liable.

Pattern: An employee provides testimony supporting a coworker's discrimination complaint or EEOC charge. Shortly after, the employee is transferred to a less desirable shift, location, or role. The transfer is described by the employer as a "business need" or "reorganization."

Why this is strong evidence of retaliation:

• Participation in a coworker's proceeding is clearly protected under the participation clause
• The transfer coincides with the testimony, not with any organizational change
• Other employees who did not testify were not transferred
• The new assignment is objectively worse (worse shift, longer commute, less desirable duties)

Key legal issue: Under Burlington Northern, a transfer to a less desirable assignment can constitute a materially adverse action if it would dissuade a reasonable worker from making or supporting a charge of discrimination, even if the employee's pay and title remain the same.

Pattern: An employee requests a reasonable accommodation under the ADA (modified schedule, ergonomic equipment, remote work, etc.). Instead of engaging in the interactive process, the employer places the employee on a PIP citing "attendance issues" or "productivity concerns" that are directly related to the disability for which accommodation was requested.

Why this is strong evidence of retaliation:

• Requesting an ADA accommodation is protected activity under the ADA's anti-retaliation provision
• The "performance issues" cited in the PIP are actually manifestations of the disability that the accommodation was supposed to address
• The employer skipped or short-circuited the interactive process required by the ADA
• The timing between the accommodation request and the PIP is close

Pattern: An employee reports sexual harassment by a supervisor. The employer investigates and perhaps even disciplines the harasser. However, the reporting employee is subsequently excluded from important meetings, removed from high-profile projects, passed over for promotion, or frozen out of professional development opportunities.

Why this is common and dangerous for employers: This pattern is especially insidious because the employer may have "done the right thing" by investigating the harassment complaint, yet still retaliates through the subtler mechanism of professional exclusion. The employer may not even realize it is retaliating — managers may avoid the complaining employee out of discomfort, legal caution, or unconscious bias against "troublemakers." Regardless of intent, the effect is materially adverse and actionable.

Pattern: An employee files an EEOC charge, is terminated (or leaves), and subsequently discovers that the former employer is providing negative references to prospective employers, mentioning the EEOC charge, or otherwise interfering with the employee's ability to find new employment.

Key legal issues:

• Post-employment retaliation is actionable — The Supreme Court in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), held that Title VII's anti-retaliation provision protects former employees. An employer who gives a negative reference because a former employee filed an EEOC charge is committing actionable retaliation.
• Blacklisting — Contacting prospective employers specifically to mention the EEOC charge or to discourage them from hiring the former employee is a clear adverse action.
• Difficult to detect — Employees often do not learn about negative references until months or years later, making timely filing of a charge challenging. Some discover it only through reference-checking services or when a prospective employer informs them.

The defense: If the same person who hired, promoted, or praised the employee is also the person who took the adverse action, the employer argues it is unlikely that person was motivated by discriminatory or retaliatory animus. Why would someone who hired you based on merit suddenly retaliate against you?

How to counter:

• The same-actor inference is a permissive inference, not a presumption. Juries are not required to accept it.
• Circumstances change. The decision-maker may not have known about the protected activity at the time of hiring but learned about it later. The retaliatory motive arose from the protected activity, not from any characteristic present at hiring.
• Even if the same actor was involved, other evidence (temporal proximity, shifting explanations, comparator evidence) may overwhelm the inference.

The defense: The employer claims that the decision-maker who took the adverse action did not know about the employee's protected activity and therefore could not have been motivated by it. Without knowledge, there can be no retaliatory intent.

How to counter:

• Show that the decision-maker did have knowledge, directly or indirectly (was informed by HR, received a copy of the complaint, was told about the EEOC charge by legal counsel)
• In a small or mid-size company, knowledge can be inferred from the company's size and communication patterns
• Use the cat's paw theory: even if the ultimate decision-maker was unaware, a supervisor with knowledge who influenced the decision can establish employer liability under Staub v. Proctor Hospital
• Show that knowledge is easily inferred from context (e.g., the decision-maker attended the meeting where the complaint was discussed, or was cc'd on the complaint email)

The defense: The employer argues that even if the adverse action occurred shortly after the protected activity, timing alone is insufficient to prove causation, especially after Nassar's but-for standard.

How to counter:

• While temporal proximity alone may not carry the day at trial (where the full but-for standard applies), very close temporal proximity (days to a few weeks) is generally sufficient to establish the prima facie case and survive summary judgment
• Supplement temporal proximity with other evidence: comparators, shifting explanations, pattern evidence, statements by supervisors, or departure from standard procedures
• If the gap is longer (months), show intervening retaliatory acts that bridge the timeline (e.g., the employer began micromanaging immediately after the complaint, escalated to a PIP two months later, and terminated the employee a month after that)

The defense: After the adverse action, the employer discovers evidence of employee misconduct (resume fraud, policy violations, theft, etc.) that would have justified the adverse action had the employer known about it at the time. Under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), the employer argues this after-acquired evidence should limit or eliminate the employee's remedies.

How to counter:

• After-acquired evidence does not defeat the retaliation claim itself — it only limits remedies. The employer is still liable for retaliation; the question is what damages are available.
• Under McKennon, the after-acquired evidence may cut off back pay and front pay from the date the employer would have discovered the misconduct, but does not eliminate compensatory or punitive damages for the period before discovery.
• Challenge whether the employer actually would have taken the same action had it known about the misconduct. If the employer has tolerated similar misconduct by other employees, the defense is weakened.
• Argue that the employer went looking for the after-acquired evidence specifically to undermine the retaliation claim, which itself can be evidence of retaliatory intent.