If your leadership team has recently investigated a harassment or discrimination complaint, responded to an ADA accommodation request, managed a whistleblower report, or considered discipline after an internal complaint — and worried about the potential for retaliation claims or retaliation in the workplace — you are not alone. Retaliation continues to be the most frequently filed charge with the EEOC, consistently accounting for nearly half or more of all discrimination charges in recent years.
Here’s a practical overview of emerging workplace retaliation trends and what leaders need to understand to minimize retaliation claims risk in 2026.
What’s driving the increase in retaliation concerns?
Retaliation in the workplace happens when an employer takes a materially adverse action against an employee for engaging in protected activity — such as reporting discrimination or harassment, requesting a reasonable accommodation, participating in an investigation, opposing unlawful conduct, or taking protected leave.
Key drivers behind retaliation concerns include:
- Links to protected activity: Retaliation claims often arise after ADA/PWFA accommodation requests, reports of harassment or discrimination, whistleblower disclosures, or FMLA leave. Even informal complaints can trigger claims if followed by negative actions like demotion, poor performance reviews, or termination.
- Subtle and overt adverse actions: Beyond obvious retaliatory termination, retaliation may include schedule changes, reduced hours, exclusion from opportunities, heightened scrutiny, or constructive discharge. Courts use a broad “materially adverse” standard.
- Empowered employees and visibility: Workers increasingly document issues and share experiences online, while EEOC outreach encourages reporting. This has heightened awareness of retaliation after filing a complaint.
- Whistleblower and overlapping protections: Rising claims under multiple statutes (Title VII, OSHA, NLRA, and state laws) add complexity, especially in safety, compliance, or hybrid/remote environments.
Do you have flexibility when addressing employee complaints?
Very little flexibility exists. Employee complaints must be addressed promptly with impartial non-retaliatory responses. Employers must ensure no action appears to punish protected activity. The “but-for” or motivating-factor causation standard often applies, making timing (temporal proximity) a key factor in retaliation claims.
Some best practices for addressing employee complaints include the following: conduct timely investigations, document legitimate business reasons unrelated to the protected activity, apply policies consistently, and clearly separate the complaint from any subsequent decisions.
Where organizations most often go wrong with retaliation
Most workplace retaliation mistakes are procedural:
- Delayed, biased, or incomplete investigations following complaints.
- Actions taken in close temporal proximity to protected activity without strong, pre-existing documentation.
- Insufficient records distinguishing performance or business issues from the complaint.
- Allowing the accused supervisor/manager to influence decisions involving the complainant.
- Lack of clear standalone anti-retaliation policies or inadequate manager training on protected activity and adverse actions.
- Overlooking subtle forms of retaliation, such as social isolation or altered responsibilities.
These gaps fuel EEOC charges, lawsuits, and reputational harm while suppressing future reporting — with many employees citing fear of retaliation as the top reason they stay silent.
Nearly 48% of all EEOC charges filed in FY 2024 involved retaliation — and it has held the top spot for seventeen years in a row. That statistic isn’t just a data point. It’s a signal that retaliation exists in some form in workplaces of every size, industry, and intention. Most organizations don’t set out to retaliate — but without a clear culture of respect, a responsive complaint process, and trained leadership, it happens anyway. The good news: this is one of the most preventable employment law risks there is. The organizations that get it right aren’t doing anything extraordinary — they’re simply doing the basics, consistently and well.
Where Organizations Get It Right
Here’s the part nobody talks about enough: preventing retaliation isn’t hard. It isn’t expensive. And it doesn’t require an army of HR professionals or employment attorneys on speed dial. What it requires is a genuine commitment to doing the right thing — and the discipline to follow through every single time.
The organizations that rarely face retaliation claims share a common thread:
- They’ve built a workplace culture where respect isn’t a poster on the wall — it’s how people actually treat each other.
- They respond to complaints quickly, investigate thoroughly, and take appropriate action when something goes wrong.
- Their managers are trained to recognize the line between legitimate management and retaliation — and they know not to cross it.
- They document everything and address small problems before they escalate.
- They never let a complaint sit unanswered.
The result? Employees who feel heard are far less likely to file charges. Issues that get addressed early rarely become lawsuits. And organizations that lead with fairness and consistency build the kind of workplace culture that attracts and retains great people.
The answer to retaliation was never a legal defense strategy. It was always a people strategy.
| Not sure if your current processes provide adequate protection against retaliation claims? Navigating retaliation in today’s workplace environment doesn’t have to expose your business. Molt and Bloom are experienced HR professionals who can help businesses strengthen investigation procedures and documentation practices, review and elevate anti retaliation policies, and deliver targeted training for managers. Let’s talk! |
A quick note before you go: the information in this article is meant to inform and raise awareness, and not to serve as legal or HR advice for your specific situation. Employment law is nuanced, state-specific, and highly dependent on the facts at hand. What applies to one employer may not apply to another. Laws and regulations referenced in this article are subject to change. Readers should verify current applicable law in their jurisdiction. When in doubt, consult with a qualified HR professional or employment attorney before taking action.
Acronym Reference Guide
The following acronyms are referenced throughout the Molt and Bloom article series. This legend is provided for quick reference.
| Acronym | Definition |
| ADA | Americans with Disabilities Act |
| ADEA | Age Discrimination in Employment Act |
| EEOC | Equal Employment Opportunity Commission |
| FMLA | Family and Medical Leave Act |
| NLRA | National Labor Relations Act |
| OSHA | Occupational Safety and Health Administration |
| PWFA | Pregnant Workers Fairness Act |
| RIF | Reduction in Force |
| SHRM | Society for Human Resource Management |
| WARN | Worker Adjustment and Retraining Notification Act |
* Additional acronyms may be added as this article series grows.
