Why Retaliation Claims Outnumber Underlying Discrimination Claims

Retaliation is the most frequently cited claim in EEOC charges filed in the US. In fiscal year 2023, retaliation was alleged in 56% of all EEOC charges filed - more than any specific form of discrimination. The reason is structural. Discrimination cases require proving that an adverse action was motivated by a protected characteristic, which is often difficult to demonstrate. Retaliation cases require proving that an adverse action followed a protected activity - and that sequence is often well-documented, because the adverse action and the protected activity are both concrete events with a timestamped record.

For staffing agencies, retaliation risk runs through their own employment practices and through their role in placing workers at client sites. An agency that terminates a contractor shortly after that contractor complains about discrimination at the client site is exposed to a retaliation claim regardless of whether the discrimination complaint was valid. The protected activity creates protected status; adverse action against a worker exercising that status must have a legitimate, documented reason that is untainted by the protected activity.

The client-agency dynamic adds a layer of complexity. If a client requests that the agency remove a contractor from their site because the contractor filed a harassment complaint internally, the agency must evaluate that request carefully. Complying without independent justification for the removal may make the agency a party to the client's retaliatory action.

How Retaliation Works in Employment Law

Retaliation occurs when an employer takes materially adverse action against an employee or worker because they engaged in a protected activity. Protected activities under US federal law include: filing or threatening to file a discrimination charge with the EEOC, participating in a discrimination investigation, opposing discriminatory employment practices, requesting a reasonable accommodation, and exercising rights under FMLA or other protective statutes.

In the UK, the Equality Act 2010 protects workers from detriment when they make a protected disclosure (whistleblowing), bring discrimination proceedings, give evidence in discrimination proceedings, or do anything in connection with the provisions of the Act. The Employment Rights Act 1996 provides additional protection against detrimental treatment for workers who raise health and safety concerns.

The adverse action that constitutes retaliation is not limited to termination. Demotion, schedule changes that reduce earnings, unfavourable reassignment, exclusion from meetings, negative performance reviews without documented basis, and increased scrutiny following a complaint all potentially constitute actionable retaliation. Courts have held that any action that would dissuade a reasonable employee from making or supporting a discrimination charge qualifies.

A compliance director at a national staffing agency received a call from a client requesting immediate removal of a contractor who had "caused problems" by raising a harassment concern about their supervisor. She asked the client to document the specific performance or conduct grounds for the removal request that were independent of the harassment report. The client could not provide any. She declined to remove the contractor and notified the client that doing so without legitimate grounds would expose both parties to a retaliation claim. She documented the entire conversation. The client did not pursue the removal. The contractor completed the assignment.

Retaliation vs Discrimination

Discrimination involves treating a worker differently because of a protected characteristic - their race, sex, age, religion, or disability. Retaliation involves treating a worker adversely because of a protected activity - their complaint, report, or participation in a legal process. The two claims often arise together because the sequence of events frequently involves an act of discrimination followed by retaliation when the worker complains. Each claim has independent legal standing; the employer can be found liable for retaliation even if the original discrimination complaint was unfounded.

Retaliation in Practice

A staffing consultant received notice from a client that they wanted to end a contractor's assignment "due to attitude issues." The consultant's notes showed that the same contractor had complained to the agency two weeks earlier about a client manager making comments about her age. She escalated the termination request to her compliance team. The compliance review documented the timing, confirmed there were no prior performance concerns on record, and asked the client to provide specific documented incidents to support the "attitude issues" claim. The client provided a vague email with no dated examples. The agency advised the client that proceeding without documented justification would create retaliation exposure. The client withdrew the termination request. The contractor completed the assignment without further incident.