Sex Assault in the Workplace

Retaliation After Reporting Sexual Assault at Work

Retaliation is one of the most common reasons employees hesitate to report workplace sexual assault. It is also independently unlawful. Federal, New York, and New Jersey law all protect employees who engage in protected activity, and retaliation claims often produce recoveries even when the underlying harassment claim does not.

What qualifies as protected activity

Protected activity includes reporting sexual assault or harassment internally, filing a charge with an outside agency, participating in an investigation, opposing conduct the employee reasonably believes is unlawful, or supporting another employee's complaint. Good-faith reporting is protected even if the reported conduct is later found not to violate the law.

What retaliation looks like

Retaliation is not limited to termination. Any employer action that would deter a reasonable employee from making or supporting a complaint can qualify. Examples include:

Termination or forced resignation
Demotion or reduction in pay
Reassignment to a less desirable role, shift, or location
Sudden negative performance reviews inconsistent with prior evaluations
Exclusion from meetings, projects, or opportunities
Increased scrutiny of work
Verbal hostility, shunning, or social exclusion by managers
Denial of promotions or training
Threats or intimidation

Proving retaliation

Retaliation claims typically require three elements: protected activity, an adverse action, and a causal connection between the two. Causation is often shown through timing. An adverse action within days or weeks of a report supports an inference of retaliation. Longer gaps require additional evidence, such as changes in treatment, hostile statements, or shifts in performance evaluation patterns.

Damages

Successful retaliation claims can recover lost wages, front pay, emotional distress damages, punitive damages, and attorneys' fees under federal, state, and city law. Punitive damages are particularly notable in retaliation cases because they respond directly to the employer's willful violation.

Retaliation without a valid underlying claim

An employee can prevail on a retaliation claim even if the underlying sexual assault or harassment claim fails. What matters is that the employee had a reasonable, good-faith belief that the reported conduct was unlawful and that the employer retaliated against them for reporting it. Courts have repeatedly held that retaliation liability is independent.

Steps to protect a retaliation claim

Employees who suspect they are being retaliated against should document changes in their treatment carefully. Copies of emails, calendars, evaluations, and text messages should be preserved on personal devices where lawful to do so. Employees should also avoid signing severance agreements without counsel, because these documents often contain releases that would waive retaliation claims.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual assault and harassment across New York and New Jersey. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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