No – Retaliation Is Illegal Under Federal, State, and City Law, and Can Support a Claim of Its Own
Employees in New York who experience sexual harassment often hesitate to speak up because they fear retaliation from their employer. That concern is understandable, but the law is clear: it is illegal for an employer to retaliate against an employee for complaining about sexual harassment or participating in an investigation. Both federal and New York laws provide strong protections against retaliation, and in many cases, retaliation itself can form the basis of a separate legal claim.
Many employees who are considering whether to come forward ask a version of the same question:
“Will I get punished for speaking up?”
In New York, the law says no. Retaliation is independently unlawful, separate and apart from whatever underlying harassment prompted the complaint in the first place. Understanding what counts as retaliation, and what legal protections apply, is an important part of deciding whether – and how – to report harassment in the workplace.
What Counts as Retaliation for a Sexual Harassment Complaint?
Retaliation occurs when an employer takes an adverse action against an employee because the employee engaged in a protected activity.
In the context of sexual harassment, protected activity generally includes reporting harassment to a supervisor, manager, or human resources; filing a formal complaint internally or with a government agency; participating as a witness in an investigation; and opposing conduct the employee reasonably believes is unlawful harassment, even if that belief later turns out to be mistaken.
The key legal question is whether the employer’s action would discourage a reasonable employee from making or supporting a complaint.
What Are Examples of Workplace Retaliation?
Retaliation is not limited to termination, and it can take many forms – some obvious, others far more subtle.
Common examples include firing or termination, demotion or denial of a promotion, a reduction in pay or hours, negative performance evaluations without justification, reassignment to less desirable duties or shifts, increased scrutiny or micromanagement, exclusion from meetings or opportunities, and hostile treatment or intimidation.
Even actions that seem minor when viewed in isolation can amount to retaliation if they form part of a pattern of behavior intended to punish or deter an employee from complaining.
Does Federal Law Protect Me From Retaliation?
Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to retaliate against an employee who complains about discrimination or harassment.
This protection applies regardless of whether the underlying harassment claim is ultimately proven, so long as the employee had a reasonable, good-faith belief that the conduct was unlawful at the time the complaint was made.
Does New York State Law Protect Me From Retaliation?
Yes. The New York State Human Rights Law (NYSHRL) provides strong anti-retaliation protections and applies to virtually all employers in New York. It prohibits retaliation against employees who oppose discriminatory practices or participate in proceedings related to harassment claims.
New York law has also evolved to be more protective of employees over time. The standard for proving retaliation under the NYSHRL is relatively broad, and courts frequently interpret the law in favor of protecting individuals who speak up.
Does New York City Law Protect Me From Retaliation?
Employees who work in New York City benefit from the New York City Human Rights Law (NYCHRL), which offers even broader protections than either federal or state law.
The NYCHRL is one of the most employee-friendly anti-discrimination laws in the country and is interpreted liberally in favor of employees. As a result, retaliation claims brought under the NYCHRL are often easier to establish than comparable claims under federal law.
Do I Have to Prove the Harassment Happened to Win a Retaliation Claim?
No. One of the most important – and least understood – aspects of retaliation law is that an employee does not need to prove that the underlying sexual harassment actually occurred in order to succeed on a retaliation claim.
Instead, the employee generally must show that they engaged in a protected activity, such as reporting harassment; that the employer took an adverse action against them; and that there is a connection between the two, such as the adverse action occurring shortly after the complaint was made.
This means that even if an investigation ultimately concludes that harassment cannot be substantiated, the employer still cannot lawfully punish the employee for raising the concern in good faith.
What Should You Do if You Experience Retaliation?
Employees who believe they are being retaliated against should take several steps to protect their rights.
Documenting everything is critical: keep detailed records of your original complaint, any subsequent actions by your employer, and how your treatment has changed, and save emails, texts, and performance reviews as they occur. Following your employer’s internal procedures for reporting retaliation, if one exists, can also help establish that the employer was aware of the issue. Finally, seeking legal advice from an experienced employment attorney can help you understand your rights and determine the right course of action.
Taking action early helps preserve evidence and strengthens your case if it later becomes necessary to file a formal claim.
How Do I File a Retaliation Claim in New York?
If internal efforts do not resolve the issue, an employee may pursue a formal legal claim through several different avenues.
Options generally include filing a complaint with the Equal Employment Opportunity Commission (EEOC), which typically must occur within 300 days of the retaliatory act; filing with the New York State Division of Human Rights (NYSDHR) or the New York City Commission on Human Rights (NYCCHR), generally within three years; or filing a lawsuit directly in court under state or city law. Each path carries different procedures and implications, which is why it is important to choose carefully and with the guidance of an attorney.
What Remedies Are Available for Retaliation?
An employee who successfully proves retaliation may be entitled to a range of remedies.
These can include reinstatement to a former position if the employee was terminated, back pay and lost wages, compensation for emotional distress, punitive damages in appropriate cases, and attorney’s fees and costs. New York law – particularly the NYCHRL – allows for significant remedies, which can make pursuing a retaliation claim well worth the effort.
What Factors Determine Whether Retaliation Occurred?
Whether a particular course of conduct amounts to unlawful retaliation cannot be determined by looking at a single incident in isolation.
Instead, experienced employment attorneys evaluate numerous considerations, including the nature and timing of the protected activity, the nature and timing of the employer’s response, whether other employees were treated similarly, what documentation exists, and which laws – federal, state, or city – offer the strongest available protections given the facts.
Only after considering those factors can meaningful advice be given about whether retaliation has occurred and how to respond.
Speak With a New York Sexual Harassment Lawyer About Retaliation After a Complaint
Your employer cannot legally retaliate against you for complaining about sexual harassment in New York. The law is designed to encourage employees to speak up without fear of punishment, and it provides meaningful protections when employers cross that line.
At The Howley Law Firm P.C., we represent employees throughout New York in sexual harassment, hostile work environment, retaliation, and workplace discrimination cases. We help clients document retaliatory conduct, understand which laws offer the strongest protection, and pursue the remedies they are entitled to.
If you believe you are being retaliated against for speaking up about sexual harassment, contact The Howley Law Firm today for a confidential consultation. Speaking up about harassment is not only your right – it is protected by law, and retaliation for doing so can have serious legal consequences for your employer.
John Howley spent nearly two decades at Kaye Scholer LLP defending companies such as Sony and Novartis, and we now represent employees who speak up against companies like them.
Call us at (212) 601-2728. The first conversation is free. We handle most retaliation cases on contingency, and there is no fee unless there is a recovery.
