What Counts as Retaliation: Firing, Demotion and Less Obvious Punishment

Retaliation is not limited to firing or demotion. Under federal law (Title VII), an employer's act counts if a reasonable employee would have found it materially adverse; under the New York City Human Rights Law (NYCHRL), it counts if it was reasonably likely to deter a person from engaging in protected activity, whether or not it changed the terms of the job.⁠^[1][2] The New York State Human Rights Law (NYSHRL) forbids a covered person to "retaliate or discriminate" and names one form of retaliation, disclosure of personnel files, in its text.⁠^[6][3]

This page covers the second part of a retaliation claim: what the employer did. For what the worker did first, see protected activity; for the link between the two, see proving retaliation.

How does each law describe the employer's act?

Law	What the employer's act has to be
Federal: Title VII	Materially adverse to a reasonable employee: an act that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination⁠[1]
New York State: Executive Law § 296(7) and § 296(1)(e)	To "retaliate or discriminate against any person" (§ 296(7)); for an employer, labor organization or employment agency, to "discharge, expel or otherwise discriminate against any person" (§ 296(1)(e))⁠[6][7]
New York City: Administrative Code § 8-107(7)	To "retaliate or discriminate in any manner"; the act need not be an ultimate action or a materially adverse change in terms and conditions, but must be reasonably likely to deter a person from engaging in protected activity⁠[2]
New York State whistleblower law: Labor Law § 740	An adverse action to discharge, threaten, penalize or in any other manner discriminate against an employee or former employee⁠[8]

What is the federal "materially adverse" test?

The federal test comes from the U.S. Supreme Court's 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White. A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which the Court defined as an action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.⁠^[1]

Three features of that test:

• It is not confined to the workplace. The Court held that Title VII's anti-retaliation provision extends beyond workplace-related or employment-related acts and harm, and it rejected lower-court rules that had limited retaliation to "ultimate employment decisions."⁠^[4]
• It filters out trivial harms. The Court wrote that an employee's decision to report discriminatory behavior cannot immunize that employee from the petty slights or minor annoyances that often take place at work and that all employees experience.⁠^[4]
• It depends on context. A schedule change may make little difference to many workers but may matter enormously to a young mother with school-age children, and a reassignment of job duties is not automatically actionable; whether it is materially adverse depends on the circumstances of the particular case.⁠^[4]

The Second Circuit, the federal appeals court that covers New York, applies this single standard to all Title VII retaliation claims.⁠^[9] It also directs that alleged acts of retaliation be considered both separately and in the aggregate, because even minor acts can be substantial taken together.⁠^[5]

What examples does the EEOC give?

The EEOC's 2016 Enforcement Guidance on Retaliation sets out the agency's reading of federal law. The guidance remained posted on the EEOC's website as of October 5, 2026, and it states that its contents do not have the force and effect of law.⁠^[10]

The most obvious adverse actions, according to the EEOC, are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge. Others may include work-related threats, warnings, reprimands, transfers, negative or lowered evaluations, and transfers to less prestigious or desirable work or work locations.⁠^[11]

The EEOC's further examples of acts that may be materially adverse under federal law include:⁠^[11]

• disparaging the person to others or in the media;⁠^[11]
• making false reports to government authorities, or filing a civil action;⁠^[11]
• threatening reassignment, or removing supervisory responsibilities;⁠^[11]
• scrutinizing work or attendance more closely than that of other employees, without justification;⁠^[11]
• abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not "severe or pervasive" enough to create a hostile work environment under the federal test;⁠^[11]
• requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity.⁠^[11]

These are examples of what may qualify, not a list of automatic violations. Each still has to meet the Burlington Northern test on its own facts.⁠^[1][4]

How is the New York City test different in its wording?

The City statute addresses the threshold directly. Administrative Code § 8-107(7) says the retaliation "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 that the act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity."⁠^[2]

New York's Appellate Division, First Department, read that language in Williams v. New York City Housing Authority to mean that no type of challenged conduct may be categorically rejected as non-actionable. The assessment is to be made "with a keen sense of workplace realities" and with the recognition that the chilling effect of particular conduct depends on context, and conduct may be deemed non-retaliatory only after a determination that a jury could not reasonably find it was reasonably likely to deter protected activity.⁠^[12]

The City law also contains a separate interference provision: it is an unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with any person in the exercise of a right protected by § 8-107, or to attempt to.⁠^[13] The City rules are set out in full in retaliation under the New York City Human Rights Law.

What does the New York State law say?

The NYSHRL prohibits retaliation in more than one place. Executive Law § 296(7) makes it an unlawful discriminatory practice for any person engaged in a covered activity to retaliate or discriminate against any person because of protected activity.⁠^[6] Section 296(1)(e) bars an employer, labor organization or employment agency from discharging, expelling or otherwise discriminating against a person for the same reasons.⁠^[7] The harassment paragraph, § 296(1)(h), separately bars an employer, licensing agency, employment agency or labor organization from subjecting an individual to harassment because the individual opposed forbidden practices, filed a complaint, testified or assisted in a proceeding.⁠^[14]

The State statute gives one concrete example. Since chapter 140 of the Laws of 2022 was signed on March 16, 2022, § 296(7) has stated that retaliation "may include, but is not limited to," disclosing an employee's personnel files because the employee engaged in protected activity.⁠^[3][15] Disclosure made in the course of commencing or responding to a complaint in a proceeding under the NYSHRL, or in another civil, criminal, judicial or administrative proceeding as permitted by law, is excepted.⁠^[3] The same 2022 law gave the Attorney General power to bring a court action over a violation of § 296(7) by an employer.⁠^[16]

The State statute does not spell out a threshold in the way the City statute does. Executive Law § 300 directs that the NYSHRL be construed liberally for its remedial purposes regardless of whether comparably worded federal civil rights laws have been so construed.⁠^[17] This guide therefore does not describe the State threshold in federal terms; it reports the statutory text.

Particular kinds of retaliation

Negative references and other acts after the job ends

Under federal law, a false or negative statement to a prospective employer can support a retaliation claim. In Jute v. Hamilton Sundstrand Corp., a former supervisor told an inquiring company that he could not discuss the plaintiff because she had a lawsuit pending, which was false, and the Second Circuit reinstated that part of her Title VII claim.⁠^[18] More examples are in retaliation after the job ends.

Punishing someone close to the person who complained

In Thompson v. North American Stainless, the U.S. Supreme Court thought it obvious that a reasonable worker might be dissuaded from protected activity if she knew her fiancé would be fired. The Court expected that firing a close family member will almost always meet the federal standard and that a milder reprisal against a mere acquaintance almost never will, and declined to generalize further.⁠^[19] See retaliation against witnesses, family members and coworkers.

Immigration-related threats

Under Labor Law § 740, New York's whistleblower statute, retaliatory action includes contacting or threatening to contact United States immigration authorities, or reporting or threatening to report the suspected citizenship or immigration status of an employee or of the employee's family or household member.⁠^[20] Labor Law § 215, which protects complaints about Labor Law violations, contains the same language.⁠^[21] See threats about immigration status.

Attendance points for protected absences

Labor Law § 215 forbids retaliating against an employee for using any legally protected absence under federal, local or State law, and it defines retaliation to include assessing any demerit, occurrence or other point, or a deduction from an allotted bank of time, that subjects or could subject the employee to disciplinary action.⁠^[22] See retaliation for taking leave.

Write-ups, performance plans and being sidelined

Warnings, reprimands and lowered evaluations appear on the EEOC's list of acts that may be materially adverse under federal law.⁠^[11] How these play out after a complaint is the subject of put on a performance plan, written up or sidelined after complaining. When conditions become bad enough that a worker resigns, see constructive discharge.

What does not count?

Not everything unpleasant that follows a complaint is retaliation. Under Title VII, petty slights and minor annoyances that all employees experience are outside the standard.⁠^[4] A reassignment of duties is not automatically actionable under Title VII.⁠^[4]

The same sources leave room for an employer's legitimate reasons. In the Second Circuit's Title VII framework, once the worker makes the opening showing the employer must articulate a legitimate, non-retaliatory reason for its action.⁠^[23] The EEOC states that if an employee's protests make the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.⁠^[24] Under Labor Law § 740, it is a defense that the action was predicated on grounds other than the employee's exercise of protected rights.⁠^[25]

Whether the employer's stated reason is the real one is a question of proof, taken up in proving retaliation: timing, causation and pretext.