Put on a Performance Plan, Written Up or Sidelined After Complaining: Is It Retaliation?

A performance improvement plan (often called a PIP), a written warning or a sudden loss of duties after a complaint can be retaliation, but none of the federal, New York State or New York City statutes cited on this page names those actions one way or the other. Each law sets a test instead. Under federal law the action must be "materially adverse."⁠^[1] Under the New York City Human Rights Law (NYCHRL) it must be "reasonably likely to deter a person from engaging in protected activity."⁠^[2] Which test applies, and what the facts show, decides the question.

What test does each law use for actions short of firing?

Layer	The test	What the sources say about lesser actions
Federal (Title VII)	A reasonable employee would have found the action materially adverse, meaning it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.⁠[1]	Retaliation is not limited to "ultimate employment decisions."⁠[5] Petty slights and minor annoyances do not count.⁠[5] A reassignment of duties is not automatically actionable; it depends on the circumstances.⁠[5]
New York State (NYSHRL)	The statute makes it unlawful to "retaliate or discriminate" against a person for opposing forbidden practices, filing a complaint, testifying or assisting, or requesting a reasonable accommodation.⁠[8]	The State law must be construed liberally regardless of how comparably worded federal laws have been construed.⁠[9] This page does not state the State threshold for lesser actions after the 2019 amendments.
New York City (NYCHRL)	The act must be reasonably likely to deter a person from engaging in protected activity. It need not be an ultimate action or a materially adverse change in the terms and conditions of employment.⁠[2]	No type of challenged conduct may be categorically rejected as non-retaliatory; the chilling effect of conduct depends on context.⁠[10]

The guide to what counts as a retaliatory act sets out these tests in full. This page applies them to plans, write-ups and sidelining.

How does the federal "materially adverse" test treat a PIP or write-up?

The federal test is objective and depends on context. The U.S. Supreme Court said in Burlington Northern v. White that the significance of an act depends on the circumstances: a schedule change may make little difference to many workers but may matter enormously to a parent with school-age children.⁠^[5] The Court also said that reporting discrimination does not immunize an employee from the petty slights or minor annoyances that all employees experience.⁠^[5]

In the Second Circuit, the federal appeals court that covers New York, one standard applies to all Title VII retaliation claims, and the plaintiff need only show that the retaliatory actions were materially adverse.⁠^[11] The Second Circuit also directs that alleged acts of retaliation be considered both separately and in the aggregate, because even minor acts can be substantial taken together.⁠^[12] That matters where a plan arrives together with other changes, such as closer scrutiny, removal from projects or a lowered review.

What the EEOC's guidance lists

The EEOC's Enforcement Guidance on Retaliation, issued August 25, 2016, says that beyond the most obvious adverse actions (denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge), other adverse actions may include work-related threats, warnings, reprimands, transfers, and negative or lowered evaluations, along with any other adverse treatment that in the circumstances might well dissuade a reasonable person from engaging in protected activity.⁠^[3] Its further examples include threatening reassignment, scrutinizing work or attendance more closely than that of other employees without justification, and removal of supervisory responsibilities.⁠^[3]

Two cautions apply. The guidance says "may include," so each example still turns on the circumstances.⁠^[3] And the guidance, which as of October 5, 2026, remained posted on the EEOC's website, states that its contents do not have the force and effect of law.⁠^[4]

How does the New York City test differ?

The NYCHRL's text departs from the federal wording. Retaliation "in any manner" is covered, and the act complained of need not result in an ultimate action with respect to employment or in a materially adverse change in the terms and conditions of employment, provided it is reasonably likely to deter a person from engaging in protected activity.⁠^[2] The First Department has said that this assessment should be made with "a keen sense of workplace realities," that the chilling effect of particular conduct is context-dependent, and that no challenged conduct may be deemed non-retaliatory before a determination that a jury could not reasonably conclude it was reasonably likely to deter protected activity.⁠^[10]

In federal court, the Second Circuit states the City-law claim this way: the plaintiff must show that she took an action opposing her employer's discrimination and that, as a result, the employer engaged in conduct reasonably likely to deter a person from engaging in such action.⁠^[13] Causation is also measured differently. On a City-law claim, summary judgment for the employer is appropriate only if the plaintiff cannot show that retaliation played any part in the employer's decision.⁠^[14] Title VII retaliation requires but-for causation, which in the Second Circuit does not mean that retaliation was the only cause.⁠^[15][16] See retaliation under the City law.

What about New York State law?

The New York State Human Rights Law (NYSHRL) has two retaliation provisions. One forbids any person covered by the section to retaliate or discriminate against a person because of protected activity.⁠^[8] The other makes it unlawful for an employer to discharge, expel or otherwise discriminate against a person for opposing forbidden practices or for filing a complaint, testifying or assisting in a proceeding.⁠^[17] The State harassment provision separately bars subjecting an individual to harassment because the individual opposed forbidden practices or filed a complaint.⁠^[18]

In 2004, before the 2019 amendments, the Court of Appeals stated the State-law elements as protected activity, employer awareness, an adverse employment action based on the activity, and a causal connection.⁠^[19] Since an amendment signed on August 12, 2019, the NYSHRL has directed that it be construed liberally regardless of whether federal civil rights laws have been so construed.⁠^[9][20] This page does not say whether the State threshold for plans, write-ups or similar actions now matches the federal test or the City test; that is a question to put to a lawyer.

New York State's model sexual harassment prevention policy gives its own examples of retaliation, including demotion, termination, reduced hours and labeling an employee as "difficult," and says the actions need not be job-related or occur in the workplace.⁠^[21] That is the State's policy language for sexual harassment complaints, not a court ruling on performance plans.

Was the complaint protected in the first place?

Retaliation provisions protect particular activity, such as opposing a forbidden practice or taking part in a proceeding, so the first question is whether the complaint qualifies.⁠^[22] Under Title VII in the Second Circuit:

• Opposition does not have to be a formal complaint; informal protests such as complaining to management count.⁠^[23]
• The employer must have understood, or reasonably could have understood, that the complaint was directed at conduct Title VII prohibits.⁠^[24]
• A plaintiff may prevail on retaliation even when the conduct complained of was not in fact unlawful, so long as the plaintiff had a good-faith, reasonable belief that it was.⁠^[25]
• For the knowledge element at the first stage, general corporate knowledge of the protected activity is enough.⁠^[26]

A complaint that a manager is unfair, with nothing tying it to race, sex, disability or another protected basis, may fall outside that protection.⁠^[24] The guide to protected activity covers each layer, including accommodation requests.

How much does timing matter?

Timing is often what people notice first: good reviews before the complaint, a plan soon after. Under federal law, a causal connection can be shown indirectly, by showing that protected activity was followed closely by adverse treatment or through other circumstantial evidence such as different treatment of co-workers who engaged in similar conduct, or directly, through evidence of retaliatory animus.⁠^[27]

The U.S. Supreme Court has said that where timing alone is offered to show causation at the first stage, the temporal proximity must be "very close."⁠^[28] The Second Circuit has not drawn a bright line; in one case it found a three-week gap sufficient.⁠^[29] Those are fact-bound examples, not rules. At the later stage, timing alone is not enough in the Second Circuit to defeat summary judgment once the employer has offered a legitimate reason, though the employee may rely on timing together with other evidence, such as inconsistent employer explanations.⁠^[7] More detail is in proving retaliation: timing and causation.

What will the employer say, and how is that tested?

In a Title VII case, once the employee makes the initial showing, the employer must articulate a legitimate, non-retaliatory reason for its action.⁠^[30] For a plan or a warning, the stated reason may be performance. The EEOC's guidance supports employers on one point: opposition to perceived discrimination does not serve as a license to neglect job duties, and if an employee's protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.⁠^[6]

The employee may then test the reason. In the Second Circuit, a plaintiff may prove that retaliation was a but-for cause by demonstrating weaknesses, implausibilities, inconsistencies or contradictions in the employer's stated reasons.⁠^[16] The broader order of proof is explained in how discrimination and retaliation are proved, and the employer's side in common employer defenses.

What should I do while I am on the plan?

These are practical steps, not legal rules:

• Read the plan closely and ask, in writing, for anything that is vague: the specific goals, how they will be measured and when.
• Keep doing the job and attend the check-ins. Meeting the plan's terms speaks directly to the stated reason.
• Keep the reviews, emails of praise and goal sheets you were given before the complaint, and note the dates.
• Answer in writing, calmly and with facts, where you think the plan is wrong.
• Write down who told you what, and when, on your own device or on paper.
• Do not delete messages, and do not copy files that are not yours. See employer monitoring and your records.

If you believe the plan is a response to your complaint, the wording of any follow-up matters for the reason given above: under Title VII the employer must be able to understand that you are complaining about conduct the statute prohibits.⁠^[24]

Do the deadlines run while the plan is pending?

Yes. Under federal law each discrete act, including each retaliatory adverse employment decision, is a separate practice that starts its own filing clock.⁠^[31] The EEOC's New York office gives 300 days from the alleged harm to file a federal charge against an employer with 15 or more employees.⁠^[32] A complaint to the New York State Division of Human Rights must be filed within three years, for claims arising on or after February 15, 2024, and a State-law court action must be started within three years.⁠^[33][34][35] A complaint to the NYC Commission on Human Rights must be filed within one year, and a City-law court action within three years.⁠^[36][37] The EEOC says its time limits generally are not extended while a person pursues an internal grievance.⁠^[38] See retaliation deadlines compared.

If the plan ends in a resignation, different questions arise. They are covered in constructive discharge and whether to quit or stay.

What people commonly get wrong

• "Only the company can be responsible." The NYSHRL retaliation provision applies to "any person engaged in any activity to which this section applies," and under the NYCHRL the Court of Appeals has said individuals may incur liability for retaliation against protected conduct.⁠^[8][39]