What Is Retaliatory Conduct

2/27/2026

"Retaliatory Conduct" generally can be defined as actions against an employee, such as termination, demotion, or loss of pay.  However, a significant number of courts have found that any action that "materially affects the terms, conditions, or privileges of employment" can be an adverse employment action.  Exactly what constitutes retaliatory conduct within the context of an investigation is still far from clear. Depending on the jurisdiction, isolating an employee as part of an investigation, or restricting or reassigning the employee pending completion of the investigation, could be considered retaliatory.  Therefore, it is essential that investigators and HR professionals discuss, during investigations, the best course of action to avoid the appearance of retaliating. This is typical during the initial complaint stage, such as a female employee claiming that her supervisor sexually harassed her. A swift move to temporarily transfer the employee, perhaps to a less desirable work shift or department, could be deemed as retaliation for having brought forth a complaint.