Retaliation is the single most commonly reported basis for federal workplace discrimination claims. Even so, employees often hesitate to report discrimination. Fear of retaliation can discourage employees not only from filing their own Equal Employment Opportunity (EEO) complaints, but from participating in the discrimination claims of others.

Sensitivity to this fact is why federal EEO laws like Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973—the same laws which prohibit discrimination in the workplace on protected bases like race, sex, religion, and disability status—also prohibit agencies from retaliating against employees who engage in the EEO process.

What Counts as Retaliation?

Retaliation is a negative action taken by an agency against an employee because that employee participated in the EEO process. The scope of EEO laws includes retaliatory actions only when triggered by an employee’s protected activity. Protected activities include:

• making a claim of discrimination;
• testifying in EEO proceedings;
• cooperating with EEOC investigations;
• helping someone else when they experience unlawful discrimination; and
• requesting reasonable accommodations for a disability.

While any number of acts opposing potentially unlawful discrimination fall under protected activity, that does not mean just any act of opposition is permitted. Whether made in good faith or not: violence and harassment are not protected activities.

What if I don’t experience discrimination on a protected basis like race or disability myself? Am I still protected from retaliation?

Yes: if you speak up against violations of EEO laws, assist others with their discrimination claims, or otherwise engage in the EEO process, that participation is a protected basis. The discrimination claim you participate in does not need to be your own for you to be protected against retaliation under federal law.

For example: say you yourself do not have a disability, but you witness the discrimination faced by a coworker for their disability. So, you share your agency EEO counselor contact information with that coworker, and offer to provide corroborating testimony to support any EEOC investigation. You are now protected under EEO law as a participant in the EEO process, and adverse actions taken toward you could potentially qualify as unlawful retaliation on your agency’s part.

How can I prove that I’ve been retaliated against by my agency?

To prove you have been retaliated against for participating in protected EEO activities, you must be able to show the following things:

1. You were involved in the EEO process/protected activities;
2. Your agency was aware of your involvement with these protected activities;
3. You were subjected to adverse treatment by your agency; and
4. That adverse treatment was caused by your protected activity.

Once you can show these four facts to be true, your case is off to a solid start. The burden then falls to your agency to provide a legitimate reason for its actions. Assuming your agency does offer a justification, the burden then returns to you. You need to show that your agency’s justifications are mere pretext, meaning, an excuse to hide their real motivation: retaliation.

How do I prove that my EEO activity motivated my agency’s actions against me?

Temporal Proximity

One strong form of evidence is temporal proximity. Temporal proximity concerns the amount of time between the Agency’s awareness of your protected activity and the agency’s adverse actions against you.

For example: if you had complained about discrimination to a supervisor, and that supervisor fired you within the week, then there is strong temporal proximity.

Comparator Evidence

Another way to establish a causal connection between your protected activity and your agency’s retaliatory action is comparator evidence. Comparator evidence shows how you were treated in comparison to other employees with comparable responsibilities, titles, and experience. What would distinguish your employer’s treatment of you from these other employees is:

• they did not engage in protected activity, but you did; and,
• they were treated better than you.

Comparator evidence could also show how fellow employees who likewise engaged in protected activity received the same poor treatment as you.

What if the EEO complaint I made or helped with gets denied?

The claim underlying your EEO activity does not need to be found valid for your actions to be protected. But your claim should be made in good faith: meaning, you truly believed your EEO activity was in response to actual discrimination. If this good faith standard is met, your activity remains protected, even if the conduct you opposed or complained about was ultimately deemed lawful.

If you engaged in EEO activity without a reasonable, good faith belief that you were responding to a violation of EEO law, your agency is still prohibited from retaliating against you for that activity.[i] That is not to say you would not face consequences for lying about discrimination, however: only that EEOC policy does not permit your employer to take matters into their own hands and discipline you without EEOC involvement.

Can any action from the agency be considered retaliatory?

Not quite. Anti-retaliation laws protect employees from any “materially adverse” actions taken by their agency that would discourage others from engaging in protected activities themselves (like, opposing discrimination, making an EEO complaint, etc.).

Materially adverse acts of employer retaliation may include:

• disciplinary measures like termination and suspension;
• attacking your reputation with falsehoods or suggestions;
• negative performance evaluations;
• Reporting or threatening to report your immigration status to authorities;
• negative treatment of those close to you, like family members, or threats to treat your loved ones unfairly;
• altering your work conditions or schedule to make your life at work more difficult; and,
• harassment and abuse.

What should I do if I think I’ve been retaliated against?

Consider contacting an EEO counselor. Discrimination against employees for speaking up against discrimination or otherwise participating in the EEO process is unlawful. If you believe your agency has retaliated against you for engaging in protected EEO activity—or even for just associating with someone who has—that in itself is a basis for a discrimination claim. Bear in mind that you only have 45 days from the most recent retaliatory action to file a complaint with the EEOC.

What Makes for a Successful Retaliation Case?

The likelihood of success for any retaliation case hinges on the particulars of that case, frustrating as that answer may be. But when it comes to retaliation, a case is far more likely to succeed if it can do the following: demonstrate that the agency, or agency representative taking the retaliatory action, was aware of the protected EEO activity at the time of the alleged retaliation. Your supervisor cannot be found to have retaliated against you for activity they were unaware of. Showing supervisor awareness is critical for a claim of retaliation to succeed.

Federal employment is subject to laws and regulations that differ significantly from those in the private sector; consulting with a federal employment lawyer can make all the difference. Tully Rinckey’s team of dedicated federal employment attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Michael C. Fallings focuses his practice on federal sector labor and employment law. Michael has extensive experience litigating cases on behalf of employees at the U.S. Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), and in both state and federal courts. He also has experience negotiating settlement agreements on behalf of federal employees. Michael has received numerous awards, including the 2026 Lawdragon 500 Leading Litigators in America, LawDragon 500 the Next Generation (2024-25), Lawdragon 500 Leading Civil Rights & Plaintiff Employment Lawyers (2025), National Black Lawyers Top 40 under 40, and Super Lawyers Rising Star (2023).

Zachary Bosak is an Associate in Tully Rinckey PLLC’s Latham, New York, office, where he focuses his practice on Federal Employment Law.

This article is for informational purposes only. Its content is not intended to constitute endorsement or legal advice, nor does it establish a client-lawyer relationship with Tully Rinckey PLLC or any of its affiliates.

[i] There is disagreement in the courts concerning the question of whether a fraudulent discrimination claim counts as a protected activity. EEOC guidance, however, warns federal agency managers not to take matters into their own hands by issuing disciplinary action. The EEOC’s concern is that such actions might discourage others from making non-fraudulent claims/opposing perceived discrimination in good faith, and also that employers would be granted undue authority if allowed to determine which employee claims do and do not stem from good faith. For example, if a person sincerely believes they have experienced unlawful discrimination, but fears they will be unable to provide adequate proof to support their EEO claim, they may opt out of the EEO process entirely for fear they might be punished for making a bad faith claim, despite acting in good faith. It is highly, highly inadvisable to make a bad faith claim of discrimination.