Retaliation in New York After 2019: "Reasonably Likely to Deter" and "Motivated in Part"

On a Tuesday in March, an employee at a distribution warehouse in Hauppauge sends HR an email with the subject line “complaint.” The shift supervisor has been making comments about her age in front of the crew and she wants it to stop. HR writes back that it takes these matters seriously. Three weeks later the April schedule comes out and she is on nights. Nobody told her why.

I represent employees on Long Island in her position. Complaint, then change, is the retaliation case. Where she works decides which statutes reach her employer, and the statute decides what she has to prove.

Which law reaches your employer

Three statutes reach a retaliation claim, and each draws the line for a lesser act, a schedule or a territory, in a different place.

In federal court the claim is 42 USC § 2000e-3(a), which makes it unlawful for an employer “to discriminate against” an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner” in a proceeding under it. The act must be “materially adverse” to a reasonable worker. Burlington N. & S.F.R. Co. v White, 548 US 53, 68 (2006).

Executive Law § 296(7) reaches every employer in the state. It makes it unlawful “to retaliate or discriminate against any person because such person has (i) opposed any practices forbidden under this article, (ii) filed a complaint, testified, or assisted in any proceeding under this article, or (iii) requested a reasonable accommodation under this article.” The words “materially adverse” are not in it. The Second Department supplies them anyway, in Burlington’s language, and that is the State test today. Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004 (2d Dept 2021).

Administrative Code § 8-107(7) reaches employment in New York City. The act “need not result in an ultimate action with respect to employment … or in a materially adverse change in the terms and conditions of employment,” but it “must be reasonably likely to deter a person from engaging in protected activity.” A change in the hours of work is among the acts the Second Department counts under it; the chart carries the case.

Here, the warehouse is in Suffolk County: the State claim in every case, Title VII if the employer has fifteen or more employees, no City claim. The State test is therefore her argument, and side by side the three look like this.

What you have to prove: the complaint caused the change

Every retaliation statute uses the word “because,” and in federal court it means but-for. “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v Nassar, 570 US 338, 352 (2013). Here, the employer will say the night shift went by seniority; if the jury believes that was part of the reason, the federal claim fails.

New York asks less. Against an employer’s “legitimate, nonretaliatory reasons,” the employee may show “that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by an impermissible motive.” Bilitch, 194 AD3d at 1004. Indeed, the Second Department states that rule “under either the NYSHRL or the NYCHRL.” Consequently, the same night shift is pleaded under every statute that reaches her, and the State claim survives the motion that ends the federal one.

The retaliation claims are the heavy claims. A discrimination claim asks a jury what your manager was thinking. A retaliation claim asks it to compare two dates, and you already have both. Motivated in part. Not but-for. Your employer needs a legitimate basis for what it did, and under New York law one with no nexus to your complaint. That is why I tell employers to watch what they say and to document better, in the personnel file and not in someone’s memory. It applies to you too. Put the complaint in writing. Keep both schedules, and the date each one reached you.

The State law’s act test after 2019: my position

Whether a move to nights is enough under the State law is the open question, and the 2019 amendment is why I answer yes. Chapter 160 of the Laws of 2019 (S6577, signed August 12, 2019) rewrote the construction clause. Executive Law § 300 now says the article “shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed.” Under sections 6 and 16 of the bill it took effect on August 12, 2019, for claims filed on or after that date.

Those are the City law’s words, from Administrative Code § 8-130(a). For a claim filed after that date, the Second Department has said: “As a result of the amendment, the NYSHRL now aligns with the standards of the New York City Human Rights Law,” so a plaintiff may defeat summary judgment “with evidence that discrimination was one of the motivating factors for the defendant’s conduct.” Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143 (2d Dept 2025). Wright is a discrimination case, not a retaliation case.

No Appellate Division or Court of Appeals decision has applied the City’s “reasonably likely to deter” test to a State retaliation claim. As recently as Morse v Fortune Socy., Inc., 2026 NY Slip Op 05021 (2d Dept Aug. 19, 2026), and McIntosh v City of New York, 2026 NY Slip Op 01780 (2d Dept Mar. 25, 2026), the Second Department recites the two tests side by side, without discussing the 2019 amendment.

What follows is my position. No court has adopted it. Executive Law § 296(7) does not contain the words “materially adverse,” and after August 12, 2019 no court reading it is required to borrow the federal gloss on them. The City statute is the model the Legislature chose, and Wright says the State law “now aligns” with it. Consequently, in my judgment, the appellate courts will hold that the lower threshold is enough for the State claim too: an act reasonably likely to deter a person from complaining, with retaliation as one motive among several. Everything will be argued. Employers invariably move to dismiss, and they will cite Bilitch, Morse and McIntosh. The appellate courts will prove or disprove my reading as the post-2019 retaliation cases reach them.

Her complaint therefore pleads the night shift both ways under the State law and leaves the employer to argue that it is neither.

If your complaint was about pay or a violation of law, two Labor Law claims join it

Retaliation is never one statute. Her complaint was about age, so it lives under the Human Rights Law; a complaint about pay, hours, a posting, or a safety rule adds two Labor Law claims, and I plead the whistleblower section first because it carries the larger remedies.

Labor Law § 740(2) says an employer “shall not take any retaliatory action against an employee” because the employee “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation,” or reasonably believes “poses a substantial and specific danger to the public health or safety,” or “objects to, or refuses to participate in” it.

Labor Law § 215(1)(a) says no employer “shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee” because the employee “has made a complaint to his or her employer … or to the attorney general or any other person” about conduct the employee “reasonably and in good faith, believes violates any provision of this chapter.” The complaint “need not make explicit reference to any section or provision of this chapter.”

Side by side, with the public-employee section and the two newer rights under them:

Had her email been about unpaid overtime or a safety regulation, the same night shift would be pleaded under these sections too, each with its own remedies and two-year clock. Under the whistleblower section a disclosure to a public body is protected only after a good faith effort to raise it with a supervisor, with five exceptions; therefore, the written complaint to the supervisor comes first.

What the employer will say

Every statute here leaves the employer one answer: a reason of its own. Labor Law § 740(4)(c) states the defense in terms, “that the retaliatory action was predicated upon grounds other than the employee’s exercise of any rights protected by this section,” and Bilitch calls it the employer’s “legitimate, nonretaliatory reasons.” Here, the reason will be seniority.

My position is that under New York law the reason must be legitimate, with no nexus to the protected activity, and must exist on paper before the lawsuit. A seniority rule that governs night-shift assignments qualifies if it is written, applied to everyone, and older than the complaint; one that first appears in the affidavit opposing the motion is a reconstruction. From November 8, 2026, the employee reads the personnel file first; our personnel file guide explains the request.

Summary judgment is the make-or-break point. The employer moves under CPLR 3212 with the seniority rule and the manager’s affidavit; the employee answers with the complaint, the calendar, HR’s reply, and the coworkers treated differently. Under Bilitch that motion fails on proof of a mixed motive; under Nassar it does not, which in my view is why a State claim has been worth more since 2019 (see the case-value post). Consequently, her case turns on the date of the oldest document in which the seniority rule appears, and the personnel file request is how she learns it.

What to save

The retaliation case is won on dates. It is incumbent upon you to keep five things, on your own device and not the company’s, and to bring them to the first call:

1. The complaint, in writing, with its date; if it was spoken, write it down that day and email it to HR.
2. The change, with its date: the old schedule and the new one, or the first written warning and every evaluation before it.
3. Who knew: HR’s reply and any message showing the decision-maker was told.
4. The coworkers treated differently, by name and date: the employee with less seniority who kept days.
5. Any written policy the employer cited for the change, and the personnel file request from November 8, 2026.

The 2026 retaliation trends post tables the lesser acts and the records that prove each. Every clock below runs from the act, not the complaint, and the shortest one is federal.

The last row is why you call a lawyer before you file anywhere.

Sources

• Univ. of Tex. Sw. Med. Ctr. v Nassar, 570 US 338 (2013)
• Burlington N. & S.F.R. Co. v White, 548 US 53 (2006)
• Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102 (2d Cir 2013)
• Williams v New York City Hous. Auth., 61 AD3d 62 (1st Dept 2009)
• Albunio v City of New York, 16 NY3d 472 (2011)
• Golston-Green v City of New York, 184 AD3d 24 (2d Dept 2020)
• Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999 (2d Dept 2021)
• Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143 (2d Dept 2025)
• McIntosh v City of New York, 2026 NY Slip Op 01780 (2d Dept Mar. 25, 2026)
• Morse v Fortune Socy., Inc., 2026 NY Slip Op 05021 (2d Dept Aug. 19, 2026)
• 42 USC § 2000e
• 42 USC § 2000e-3
• 42 USC § 2000e-5
• 42 USC § 1981a
• Executive Law § 292
• Executive Law § 296
• Executive Law § 297
• Executive Law § 300
• Chapter 160 of the Laws of 2019 (S6577)
• Chapter 656 of the Laws of 2023 (S3255)
• Labor Law § 194-b
• Labor Law § 210-b
• Labor Law § 215
• Labor Law § 740
• Civil Service Law § 75-b
• CPLR 214
• CPLR 3212
• Administrative Code of the City of New York § 8-107 and § 8-130
• Administrative Code of the City of New York § 8-502

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The complaint was on a Tuesday. The schedule changed three weeks later. HR’s reply is her first exhibit, and the employer that stopped at the reply is its own post. That is the case, and the employer’s own paper decides it.

If your shifts, your route, or your standing at work changed after you complained, call (516) 750-0595 with the complaint you sent, or request a free case review.