Retaliation is a reaction by an employer in response to some action that the employee has taken. For retaliation to violate the law, it must be in response to the employee’s engagement in protected activity. Protected activities are activities that are protected by law, such as when an employee complains about the employer’s violation of a law or regulation, files a discrimination or harassment complaint based on a protected trait, complains about unpaid overtime or wage violations, reports safety violations, requests a reasonable accommodation, or asserts rights under laws like the Family and Medical Leave Act (FMLA). The employer’s retaliatory response must constitute a materially adverse employment action, which is a tangible negative change in the employee’s job or working conditions.
Materially adverse employment actions include significant changes such as being demoted, having wages reduced, losing benefits, or being reassigned to a far less favorable position. Termination is the ultimate materially adverse employment action. These actions have a concrete impact on the employee’s job status or benefits. For an action to be "materially adverse" it needs to be an action that might deter a reasonable person from engaging in protected activity.
However, there are many common misconceptions about what constitutes a materially adverse employment action. Minor annoyances, petty insults, hurt feelings, trivial punishments, or other actions that are not likely to dissuade an employee from engaging in protected activity are not considered to be "materially adverse." Minor schedule changes, critical performance reviews, negative feedback, increased supervision, or being assigned more tasks are typically not considered materially adverse unless they lead to consequences such as a loss of pay or benefits. Being looked at in a funny way or being stared down do not constitute adverse employment actions. The key question with a retaliation claim is, “what are the employee’s damages?” For most attorneys, for a case to be viable, there needs to be measurable damages to assess the value of the case. Termination and demotions have economic consequences that are objective and quantifiable.
In retaliation cases, it’s critical to remember that retaliation is a reaction to something that the employee has done—specifically, something that is protected by the law. There needs to be an action and a reaction. Without this initial action, expressed by the employee’s engagement in protected activity, no matter how negative the employer’s actions feel, they generally won’t meet the legal standard for retaliation. Retaliation claims focus on whether the employee has engaged in protected activity and the materially adverse employment consequences that the employee faces for having done so.