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How and when do you file an unlawful retaliation lawsuit?

The Equal Employment Opportunity (EEO) laws prohibit retaliation and related conduct. If an employee or job applicant believes the employer is unlawfully retaliating by punishing them for asserting their right to be free from discrimination, he or she may decide to file a lawsuit.

They must first file a charge with a U.S. Equal Employment Opportunity Commission field office. The worker will then receive a “notice-of-right-to-sue” upon completion of an investigation into their case. Once the worker receives this notice to sue letter, they must file a lawsuit within 90 days.

Many states have agencies that enforce laws prohibiting employment discrimination. These are referred to as Fair Employment Practices Agencies (FEPAs). EEOC and some FEPAs have worksharing agreements in place to prevent a duplication of charges. Therefore, if you file a charge with either EEOC or a FEPA, the charge also will be automatically filed with the other agency. 

In California, under the Fair Employment and Housing act (FEHA) Government Code section 12965, individuals file with the Department of Fair Employment and Housing (DFEH) a complaint and obtain a “notice-of-right-to-sue” before filing a lawsuit under FEHA. The requests will be immediately accepted by DFEH for people proceeding with their case to court. A lawsuit must be filed within a year of the act of discrimination.

In order to prove a claim of illegal retaliation, evidence must be available to demonstrate:

  • That the individual was engaged in protected activity, such as participating in a complaint process or other activity meant to protect against discrimination;
  • The employer took a materially adverse reaction, such as reduced wages or termination; and
  • That the retaliation or protected activity caused the employer’s adverse reaction.


For more information about filing a lawsuit for illegal retaliation, please visit https://www.eeoc.gov/employees/lawsuit.cfm.

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