Workplace retaliation isn’t always obvious. Sometimes it’s more like a door closing, or a sudden shift in available opportunities. Other times, it’s sharper—discipline, demotion, exclusion. However it manifests, retaliation is one of the most frequently filed claims with the Equal Employment Opportunity Commission (EEOC).
The message is always the same: Stay quiet. But under the law, that message is unlawful. The EEOC has long made clear that punishing employees for reporting discrimination or asserting their rights is retaliation, and it’s illegal. In 2024, updated EEOC retaliation guidance expanded on how these protections apply in today’s workplaces. While some aspects of that guidance are being challenged in court, the core principle remains unchanged: Employees cannot be silenced for standing up against unlawful behavior.
If you believe your employer violated your rights, you do not need to face this fight alone. At Smithey Law Group LLC, our Annapolis employment attorneys focus exclusively on labor and employment matters. Attorney Joyce Smithey, a recognized authority in Maryland employment law, has authored leading legal texts, taught employment law, and built a reputation for excellence in labor and employment litigation. Her leadership and the firm’s award-winning reputation can help you understand your options and protect your future.
What Are EEOC Retaliation Elements?
To understand how the EEOC evaluates retaliation claims, it helps to break them into three legal elements. Each of the following must be present for a claim to move forward:
- Protected activity. The employee engaged in an action that the law shields, such as filing a discrimination complaint, participating in an EEOC investigation, or requesting an ADA accommodation.
- Adverse action. The employer responded with an action that could discourage a reasonable person from continuing to assert their rights.
- Causal connection. There must be a link between the protected activity and the adverse action. Timing often plays a role here: If discipline or demotion occurs soon after a complaint, the law may infer that retaliation occurred.
For example, consider a scenario where an employee reports being subjected to racial slurs by a supervisor. Within weeks, the employer reduces the employee’s shifts, issues a negative performance review despite years of praise, and reassigns them to less favorable duties. This example meets all of the EEOC retaliation elements—protected activity, adverse action, and a clear causal connection—making a strong case under both federal and Maryland law.
What Counts as Protected Activity Under EEOC Retaliation Guidance?
The EEOC defines retaliation as any adverse action taken against an employee for engaging in “protected activity.” Protected activity includes:
- Reporting or opposing unlawful discrimination or harassment,
- Participating in an EEOC or internal investigation,
- Requesting accommodations for disability or religion, and
- Refusing to follow an order that would result in discrimination.
The EEOC emphasizes that retaliation does not need to be dramatic. Even subtle acts designed to discourage employees from asserting their rights may qualify. The basis for evaluating retaliation claims that the courts look at is whether the action would “dissuade a reasonable worker” from complaining about what they experienced.
What Are Examples of Retaliation?
Illegal retaliation can occur in a wide range of workplace situations. Common retaliation examples include:
- Demoting an employee after they complain about harassment;
- Cutting shifts, reducing pay, or changing schedules in ways that punish protected activity;
- Giving unjustified negative performance reviews following a discrimination complaint;
- Excluding an employee from meetings or opportunities for advancement; and
- Heightened scrutiny or disciplinary write-ups without legitimate cause.
Retaliation also extends beyond the workplace walls. Threatening immigration status, interfering with future employment references, or spreading false information to harm reputation may all fall within the EEOC’s scope.
Ultimately, employees should trust their instincts if they notice sudden, negative changes following protected activity. Employers should evaluate their policies and training to ensure managers understand how quickly retaliation claims can arise.
What to Know About the EEOC’s Latest Retaliation and Harassment Guidance
In April 2024, the EEOC issued its first major update on workplace harassment for over two decades. The guidance addresses modern issues such as harassment of LGBTQ+ employees, pregnancy and lactation accommodations, electronic communication in hybrid workplaces, and the concept of “retaliatory harassment.” Importantly, the EEOC reiterated that retaliation, even subtle actions designed to silence complaints, is unlawful.
However, employees should understand that this guidance reflects the EEOC’s interpretation of federal law, not new legislation. Parts of the guidance are already being challenged in court, and the rules could change. What has not changed is the fundamental protection: Both federal law and Maryland’s Fair Employment Practices Act prohibit employers from punishing workers for reporting or opposing discrimination.
What Can Employees Do If They Suspect Retaliation?
Employees experiencing retaliation should be aware that the law protects them, even if their original complaint is not substantiated. The key factor is whether they engaged in protected activity in good faith.
If you suspect retaliation:
- Keep records of adverse actions, including emails, schedules, or evaluations;
- Note the timing of changes in relation to your complaint or participation in an investigation; and
- Seek advice early from an employment attorney familiar with both EEOC and Maryland law.
Employees do not need to prove that retaliation was the only reason for the adverse action. Demonstrating that retaliation was a motivating factor may be sufficient to prevail under both federal and state standards.
Move Forward with Confidence: Contact Smithy Law LLC Today
Retaliation claims often turn on details. Was the negative evaluation justified? Did the demotion follow a long-standing performance issue, or was it suspiciously timed? Proving intent requires careful legal analysis, access to evidence, and familiarity with EEOC procedures.
At Smithey Law Group LLC, our attorneys focus exclusively on labor and employment law. Our attorneys have been recognized nationally and locally with awards such as Super Lawyers, Chambers Band 1 Rankings, and the Daily Record’s Leadership in Law Award. If you believe retaliation has altered your career path, you can rest assured knowing our attorneys bring unmatched experience to each case. Reach out today to learn how our team can protect your rights and help you move forward.
