Retaliation Claims Against Massachusetts Employers: The Risk That Outlasts the Underlying Complaint

By a Massachusetts Business Attorney · April 2026 · Employment Law

You are a Massachusetts employer. Your employee filed a complaint with the MCAD alleging discrimination. You’re frustrated, maybe angry. The complaint is false or exaggerated. You’re thinking about cutting hours, moving her to a less desirable position, or terminating her. What you’re about to do could be far more damaging to your business than the underlying discrimination claim.

The previously mentioned situation occurs frequently, and here’s what I tell clients: retaliation claims often outlast and overshadow the underlying complaints. An employee’s discrimination claim might be weak or baseless. But if you retaliate, you’ve just created an ironclad retaliation case. You’ve given the MCAD and a jury exactly what they need.

Let me walk you through retaliation law, what constitutes an adverse action, how timing works against you, and what you must do to protect your business.

Retaliation Under M.G.L. c. 151B

M.G.L. c. 151B, § 4(4)(d) makes it unlawful to “discharge, discharge, fine, suspend, expel, or otherwise discriminate, coerce, intimidate, or interfere with… any person because [they have] opposed any practices forbidden by this chapter, or because any person has filed a complaint, testified, or assisted in any proceeding… relating to an alleged unlawful practice.”

Translation: you cannot take adverse action against an employee because she complained about discrimination, filed with the MCAD, participated in an investigation, or engaged in any protected activity.

The protection is broad. It covers:

1. Filing a discrimination complaint with the MCAD or EEOC.

2. Internal complaints. Complaining to management about potential discrimination.

3. Participation in investigation. Cooperating with an MCAD investigator or in a company investigation.

4. Witness testimony. Testifying in an MCAD hearing or court proceeding.

5. Opposing discrimination. Simply saying “this seems discriminatory” or “I think this violates the law.”

6. Protected speech. Discussing wages, working conditions, or rights with coworkers.

The protection applies even if the underlying complaint is false or exaggerated. The employee doesn’t need to be right. She just needs to have a reasonable, good-faith belief in the complaint.

Retaliation Under the Wage Act

M.G.L. c. 149, § 150 protects employees who complain about wage violations. It is unlawful to discharge or discriminate against an employee for:

1. Filing a wage complaint with the Massachusetts Department of Labor.

2. Complaining to management about wage violations.

3. Participating in an investigation or proceeding related to wages.

4. Refusing to work in violation of wage law (e.g., refusing unpaid overtime).

Wage retaliation claims can arise even when the underlying wage claim is disputed. If the employee complains that she wasn’t paid for overtime and you terminate her shortly after, you’ve created a wage retaliation case.

Retaliation Under FMLA

The Family and Medical Leave Act (29 U.S.C. § 2615) prohibits retaliation against employees who take protected leave or request leave. You cannot discharge, discipline, or otherwise discriminate against an employee for:

1. Taking FMLA leave.

2. Requesting FMLA leave.

3. Complaining about FMLA violations.

4. Participating in an FMLA investigation.

FMLA retaliation is common. An employee takes medical leave and returns to find her job eliminated or she’s been moved to an undesirable position. That’s retaliation.

Retaliation Under Workers’ Compensation Law

M.G.L. c. 152, § 75B protects employees who file workers’ compensation claims or cooperate in a workers’ comp investigation. You cannot discharge or discriminate against an employee for:

1. Filing a workers’ compensation claim.

2. Testifying in a workers’ comp hearing.

3. Complaining about a workers’ comp issue.

Workers’ comp retaliation is surprisingly common. An employee is injured at work, files a claim, and is then terminated for an ostensibly unrelated reason. Courts are skeptical of sudden terminations after work injury.

How Close Timing Creates Liability

Here’s the mechanism by which retaliation claims work: timing. Courts recognize that if adverse action occurs shortly after protected activity, it creates an inference that the adverse action was retaliation.

This is called “temporal proximity” or “close timing,” and it’s powerful evidence:

1. Same day or within days. Discharge or discipline within a few days of a complaint is strong evidence of retaliation. You need extraordinarily strong documentation of a legitimate reason.

2. Within weeks or a month. Action within 2-4 weeks of protected activity raises inference of retaliation. You need solid documentation of an independent business reason.

3. Within a few months. Action within 2-3 months can support a retaliation inference, particularly if the conduct being punished wasn’t previously documented.

4. Beyond 3-4 months. The longer the gap, the weaker the retaliation inference. But timing alone doesn’t defeat retaliation; other evidence can support it.

The key point: the closer in time the adverse action is to protected activity, the heavier your burden to prove you had a legitimate, independent reason for the action.

What Constitutes an Adverse Action

What is “adverse action” for retaliation purposes? Courts interpret it broadly. It includes:

1. Termination. The most obvious retaliation.

2. Demotion or reassignment. Moving to a less desirable position.

3. Reduced hours or pay. Cutting hours or reducing compensation.

4. Negative performance review. Suddenly downgrading evaluations.

5. Discipline or warning. Issuing a disciplinary action or warning.

6. Exclusion from benefits. Removing benefits or denying benefits.

7. Transfers or schedule changes. Changing work assignments in punitive ways.

8. Isolation or harassment. Creating a hostile work environment.

What courts have said is NOT adverse action:

1. Treating the employee normally. You’re not required to treat a complaining employee with kid gloves or give preferential treatment.

2. Normal performance management. You can provide feedback, evaluate work, or address performance issues. The question is whether the timing and pretextuality suggest retaliation.

Documentation and Legitimate Reasons

How do you protect yourself? By documenting everything and proving you had a legitimate, independent reason for any adverse action against a complaining employee.

Here’s what I tell clients to do:

1. Document performance issues contemporaneously. Before any complaint is filed, document performance problems, misconduct, or concerns. Don’t wait until after the complaint to suddenly “find” problems.

2. Create a paper trail of legitimate reasons. If the employee has prior written warnings, documented performance issues, or prior disciplinary history, that helps show the adverse action is not retaliatory.

3. Apply consistent standards. If you’re terminating the employee for attendance or performance, be prepared to show that you have terminated other employees for the same issues. Selective enforcement is evidence of retaliation.

4. Get HR and counsel involved early. Before taking any action against an employee who has complained, involve HR and an attorney. Make the decision collaboratively with documentation.

5. Wait if you can. If the complaint is recent and you’re considering adverse action, wait a reasonable period (several months at minimum) before proceeding. The longer the gap, the weaker the retaliation inference.

6. Document the decision-making process. When you do take action, document the meeting, the reasons, what was discussed. Make clear the decision was made based on business reasons, not in response to the complaint.

7. Never mention the complaint. In any termination or disciplinary meeting, do not reference the complaint, the MCAD, the employee’s protected activity, or anything suggesting the action is in response. Stick to the legitimate reasons.

8. Don’t retaliate emotionally. I see employers make rash decisions when they’re angry about a complaint. Take a breath. Consult counsel. Make business decisions, not emotional ones.

The Bottom Line

Retaliation claims are among the easiest discrimination claims to prove because you’re basically admitting the protected activity happened. The only question is whether it caused the adverse action. And if the timing is close and you have weak documentation of a legitimate reason, the inference of retaliation is overwhelming.

Here’s the practical guidance: if an employee files a complaint, it is often best not to take any adverse action against that employee without consulting counsel. Call me, or another attorney, before you terminate, discipline, reduce hours, or move the employee. We’ll talk through whether the proposed action makes sense, what documentation you need, and whether waiting is the safer course.

The cost of a consultation is far less than the cost of a retaliation lawsuit that should have been prevented.

Call my office at 978-273-8337 or visit gaudetlawoffice.com to discuss any employment decisions involving employees who have complained or filed claims. I’ll help you evaluate the decision and implement it in a way that avoids retaliation liability.

For more information on retaliation and protected activity, visit the Massachusetts Commission Against Discrimination (opens in new tab).

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ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.