Retaliation Against Witnesses, Family Members and Coworkers in New York

You do not have to be the person who complained to be protected from retaliation. Under federal law, Title VII protects an employee or job applicant who "testified, assisted, or participated in any manner" in a Title VII investigation, proceeding or hearing.⁠^[1] The New York State Human Rights Law (NYSHRL) protects any person who "testified, or assisted in any proceeding" under it, and the New York City Human Rights Law (NYCHRL) has parallel wording.⁠^[4][5] Under federal law, an employer may also violate Title VII by punishing someone close to the employee who complained.⁠^[3]

For the general rules, see what workplace retaliation is in New York and what counts as protected activity.

Are witnesses protected from retaliation?

Federal law describes two kinds of protected activity: "participating" in an equal employment opportunity (EEO) process and "opposing" discrimination.⁠^[8] A witness can fall under either one.

Situation	Layer	What the source says
Answering questions in the employer's internal investigation	Federal	Title VII's protection extends to an employee who speaks about discrimination not on her own initiative but in answering questions during an employer's internal investigation.⁠[2]
Being named as a witness in a coworker's lawsuit	Federal (Second Circuit)	Protection extends to an employee named as a voluntary witness in a Title VII suit who is never called on to testify.⁠[9]
Testifying or assisting in a State proceeding	New York State	The NYSHRL makes it unlawful to retaliate against any person because that person filed a complaint, testified, or assisted in any proceeding under it.⁠[4]
Helping the City agency	New York City	The NYCHRL protects a person who filed a complaint, testified or assisted in a proceeding, or assisted the NYC Commission on Human Rights or the Corporation Counsel in an investigation.⁠[5]

Other federal laws have participation wording of their own: the ADA protects an individual who "testified, assisted, or participated in any manner" in an ADA proceeding, and the FMLA protects a person who has given, or is about to give, information or testimony in an FMLA proceeding.⁠^[10][11]

The EEOC's guidance on the federal laws says protected participants include anyone who takes part in the EEO process "in any way, including as a complainant, representative, or witness for any side, regardless of their job duties or managerial status."⁠^[12] EEOC guidance states the agency's position and does not have the force of law.⁠^[13]

Witnesses under other New York State retaliation statutes

Several New York State statutes outside the Human Rights Law protect employees who give information or testify.⁠^[14][15]

• Labor Law § 740, the State whistleblower law, protects an employee who provides information to, or testifies before, a public body investigating the employer's activity.⁠^[14]
• Labor Law § 215 protects an employee who gave information to the Labor Commissioner or the Attorney General, or who testified, about a Labor Law matter.⁠^[15]
• Workers' Compensation Law § 120 protects an employee who has testified or is about to testify in a workers' compensation proceeding.⁠^[16]
• Penal Law § 215.14 protects from discharge or penalty an employee who is absent from work because of being subpoenaed as a witness in a criminal proceeding, where the employee notified the employer before the day of attendance.⁠^[17]

Coworkers who back up a complaint

Support short of testifying can also be protected. In the Second Circuit, protected opposition under Title VII includes "expressing support of co-workers who have filed formal charges," along with complaints to management.⁠^[18] The EEOC's guidance on the federal laws says the reasonable-belief standard can protect witnesses or bystanders who intervene or report what they observed.⁠^[19]

New York State's model sexual harassment prevention policy describes protected activity as including reporting that another employee has been sexually harassed or discriminated against, and encouraging a fellow employee to report harassment.⁠^[20]

In New York City, the state's highest court has read the word "opposed" in the NYCHRL broadly: a supervisor opposed discrimination when, without using that word, she made clear to her superior that she thought his treatment of a subordinate was wrong.⁠^[21] The NYCHRL also makes it a separate unlawful practice to coerce, intimidate, threaten or interfere with a person because that person aided or encouraged someone else in exercising rights the City law protects.⁠^[22] The federal ADA has a similar provision covering a person who aided or encouraged another individual in exercising ADA rights.⁠^[23]

See also witnesses and bystanders to sexual harassment and what happens in an HR investigation.

Managers and HR staff who handle complaints

People whose job is to receive or investigate complaints are in a particular position. In the Second Circuit, an employee who is required as part of the job to report or investigate other employees' discrimination complaints does not engage in protected opposition under Title VII merely by doing so; the same employee is protected if she actively supports other employees in asserting their rights or personally complains about the employer's discriminatory practices.⁠^[24] Under New York State's whistleblower law, protection applies "whether or not within the scope of the employee's job duties."⁠^[25]

Family members, partners and other people close to the person who complained

Under federal law, the Supreme Court addressed this in Thompson v. North American Stainless. An employee filed an EEOC charge, and the employer fired her fiancé, who worked for the same company.⁠^[3] The Supreme Court said it was obvious that a reasonable worker might be dissuaded from protected activity if she knew her fiancé would be fired.⁠^[3]

The Court declined to list which relationships qualify. It said that firing a close family member will almost always meet the standard, that inflicting a milder reprisal on a mere acquaintance will almost never do so, and that beyond that it was reluctant to generalize.⁠^[3]

Who can bring the claim?

The Court also decided that the fiancé himself could sue under Title VII. It held that the statute allows suit by a plaintiff within the "zone of interests" the law protects, and that he qualified because he was an employee of the same employer and injuring him was the employer's intended means of harming the coworker who had filed the charge.⁠^[3]

The EEOC's guidance, as a statement of the agency's view of the federal laws, says both the employee who engaged in protected activity and the third party who was harmed may state a claim, and that the third party may do so even if he was never employed by the defendant employer; its example is an employer that cancels a vendor contract with the complaining employee's husband.⁠^[26]

What the New York statutes say

The State and City retaliation clauses are each worded in terms of retaliation against a person "because such person has" engaged in the listed protected activity.⁠^[4][5] Both laws carry a rule of liberal construction: the NYSHRL is to be construed liberally regardless of how comparably worded federal civil rights laws have been construed, and the NYCHRL is to be construed liberally for its "uniquely broad and remedial purposes."⁠^[27][28] Neither clause mentions relatives or associates of the person who engaged in the protected activity.⁠^[4][5]

Two New York State Labor Law provisions name family members directly. Under Labor Law §§ 215 and 740, retaliation includes threatening to report, or reporting, the suspected citizenship or immigration status of an employee's family or household member.⁠^[6][7] See threats about immigration status.

How serious does the act against a witness or relative have to be?

Under federal law, the act must be one that a reasonable employee would have found materially adverse, meaning it well might have dissuaded a reasonable worker from making "or supporting" a charge of discrimination; petty slights and minor annoyances are not enough.⁠^[29][30] In New York City, the NYCHRL asks whether the act was reasonably likely to deter a person from engaging in protected activity, and does not call for an ultimate employment action.⁠^[5] See what counts as a retaliatory act and retaliation under the NYC Human Rights Law.

Limits that apply to witnesses and supporters too

• The employer has to know. In the Second Circuit, the elements of a Title VII retaliation claim include that the defendant knew of the protected activity and that there is a causal connection between the activity and the adverse action.⁠^[31]
• The statement has to be about discrimination. In the Second Circuit, under Title VII, the employer must have understood, or reasonably could have understood, that the opposition was directed at conduct that law prohibits.⁠^[32]
• The manner has to be reasonable. The EEOC's guidance on the federal laws says it is not reasonable opposition to badger a subordinate employee to give a witness statement in support of an EEOC charge and attempt to coerce her to change it.⁠^[33]

Pressure on witnesses during an agency investigation

The EEOC's guidance describes a federal case in which management created an environment of intimidation to deter current and former employees from cooperating as witnesses in an EEOC investigation; the court granted preliminary relief prohibiting retaliatory measures against the EEOC's potential class members, witnesses, or their family members.⁠^[34] The guidance gives this as an example in its discussion of temporary or preliminary relief.⁠^[34]

Practical notes

• If you are a witness: answer truthfully, and keep a private note of when you were interviewed, who was present, and any later change in how you were treated.
• If a relative or partner works for the same employer: note the date of the complaint and of anything that then happened to the other person.
• If you manage or investigate: treat people who take part in an investigation, on either side, the way they were treated before it. In the EEOC's view of the federal laws, taking part in a complaint does not excuse neglecting job duties.⁠^[33]

Next: proving retaliation: timing and causation, retaliation after the job ends, and retaliation deadlines compared.