I. Introduction

Neutrality in the face of harassment is often framed as professionalism. Colleagues claim they “don’t want to get involved.” Supervisors maintain they’re “staying impartial.” But in practice, silence is rarely neutral—a structural behavior shaped by fear, status, and survival. When someone reports misconduct, retaliation does not need to be orchestrated from the top. The institution delegates it informally—through culture. Invitations stop. Conversations shift. Coworkers withdraw or look away. This form of ambient punishment functions as a collective survival strategy, one deeply rooted in what psychologist Jennifer Freyd terms betrayal trauma—a form of dissociation that emerges when the harmdoer is someone the individual depends on. In workplace settings, the institution becomes that attachment figure. Employees learn that acknowledging misconduct—or standing with someone who does—threatens their security. So they adapt. They protect themselves by disengaging from the target, aligning with the system, and masking their complicity as neutrality. This is the real-world machinery of retaliation—quiet, informal, plausible, and devastating. Yet the law continues to define retaliation narrowly: demotions, firings, or tangible adverse actions executed by employers, not peers. That doctrinal limitation enables a form of institutional betrayal that is psychological, social, and legally invisible. This article challenges the myth of neutrality in retaliation law and argues for doctrinal expansion to reflect the behavioral ecology of retaliation, including what is done and what is allowed, ignored, or enforced through silence.

II. The Legal Framework: What Retaliation Law Sees—and Misses

As codified in Title VII of the Civil Rights Act of 1964 and mirrored in state and local civil rights statutes, retaliation law prohibits adverse treatment against employees who oppose discrimination or participate in protected activity. Courts have long debated what constitutes an “adverse action,” traditionally limiting it to tangible harms such as termination, demotion, or loss of pay. In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court broadened the standard, holding that retaliatory conduct need not be employment-related as long as it dissuades a reasonable person from engaging in protected activity. This was a critical evolution—shifting retaliation from a purely economic inquiry to a contextual one.

More recently, Muldrow v. City of St. Louis, 601 U.S. ___ (2024), reaffirmed that even a lateral transfer can qualify as an adverse action if it results in career stagnation or reputational damage. These cases represent essential progress in acknowledging that harm in the workplace is not always economic—but they remain tethered to the assumption that retaliation is carried out through affirmative acts by the employer.

The law continues to overlook the relational and cultural machinery of retaliation: the silence, exclusion, and disengagement that follows a complaint, often carried out by peers and sanctioned through inaction. Courts routinely dismiss peer-based social punishment as “immaterial” or “subjective,” failing to grasp how these actions—or nonactions—function as enforcement mechanisms within institutional hierarchies. This judicial blind spot renders trauma-adapted behavior invisible. Survivors who were once supportive colleagues, excluded from meetings, iced out, denied information, or watched as whisper campaigns unfolded around them may suffer reputational and psychological harm as profound as any formal demotion. Yet, unless these actions are traceable to an identifiable managerial directive, they rarely register as legally cognizable retaliation.

This failure reflects a more profound truth: Retaliation jurisprudence was built for policy, not people. It recognizes memos, metrics, and managerial authority—but not culture, complicity, or betrayal by omission. As long as the law separates relational harm from formal liability, it will continue to underprotect those it purports to shield.

III. Institutional Retaliation Through Passive Means

In the aftermath of a harassment complaint, the most common retaliation doesn’t come from a pink slip but from the cold shoulder. The law is slow to recognize that retaliation is often enforced through passive means: silence, social withdrawal, missed opportunities, and emotional distancing. However, these passive acts are not incidental within institutions—they are culturally conditioned responses. They function as social signals of loyalty to organizational power and are often weaponized as tools of exclusion.

What appears to courts as inaction is often understood within the workplace as active disapproval. When a colleague distances themselves from a complainant, avoids eye contact, or fails to speak up in support, it is rarely interpreted as neutrality. It is seen—and felt—as complicity. This dynamic is not simply interpersonal; it is institutional. As Freyd’s betrayal trauma theory suggests, individuals who depend on an institution for stability may unconsciously align with its norms to maintain a sense of safety. Silence becomes a way of preserving proximity to power. The bystander who once seemed supportive now disappears, and that disappearance communicates more than any formal reprimand ever could.

This behavior flourishes in institutions with rigid hierarchies, such as law enforcement, public education, academia, and government agencies, where dissent is often read as disloyalty. In these environments, what Judith Herman described in Trauma and Recovery as “traumatic reenactment” can occur at a collective level: the organization repeats the harm by isolating the person who called it out. Rather than addressing the misconduct, the system punishes the disruption of silence.

This is what we might call institutional retaliation by omission—a climate where no one is told to retaliate, but everyone understands what happens to those who speak. Silence becomes currency when the cost of standing with a victim is social exclusion or professional marginalization. And in that silence, retaliation spreads—not through memos or direct orders but through atmospheres of avoidance, disengagement, and performative neutrality.

Yet, despite its power, this form of retaliation remains largely unregulated. Courts and employers alike continue to pretend that silence is benign, disengagement is apolitical, and peer dynamics are outside the scope of institutional responsibility. But in reality, passivity is often the most efficient and plausible form of retaliation—especially when institutions want clean hands and quiet outcomes.

These dynamics are not just theoretical—they are increasingly recognized in real-world litigation, where juries and courts are beginning to see how passive retaliation manifests through institutional culture.

A clear illustration of institutional retaliation by omission can be seen in Olaechea v. City of New York, where former NYPD Lieutenant Angelique Olaechea faced escalating retaliation after supporting a subordinate’s discrimination complaint. While the formal acts—reassignment, departmental charges—were visible, much of the harm came from peer isolation and reputational smearing that followed her testimony. These informal dynamics were central to the jury’s finding of unlawful retaliation and led to an $872,000 verdict in her favor. Similarly, in Walls v. City of New York, the complainant described being socially ostracized and professionally sidelined after reporting sexual harassment. While the retaliation included formal demotions, the deeper damage was carried out through silence and exclusion—hallmarks of passive institutional retaliation.

IV. Why Courts and Employers Avoid This Reality

The persistence of passive retaliation in the workplace is not due to a lack of evidence but to a lack of legal imagination and institutional will. Recognizing social exclusion, reputational smearing, or peer disengagement as retaliation would require courts to accept that retaliation is not only what is done but also permitted, tolerated, or incentivized through inaction. It would force legal doctrine to engage with the relational architecture of harm—something traditional employment law has long resisted.

The prevailing model of retaliation law is bureaucratic and behaviorist: it focuses on discrete, documentable actions taken by identifiable decision-makers. This framework is clean and administrable and appeals to institutional efficiency. But it is fundamentally misaligned with how retaliation manifests in reality. The harm often unfolds in the margins—in meetings one is not invited to, in relationships that quietly dissolve, in the knowing glances and silences that follow a complaint. These are not anomalies; they are features of institutional culture.

Courts often dismiss these harms as “immaterial” or “interpersonal.” However, as researchers in trauma and organizational behavior have shown, the consequences of workplace ostracism can be as damaging as overt abuse. Being excluded activates the same neural pathways as physical pain. It leads to performance, mental health, and retention declines—outcomes well within the scope of employment law’s remedial purpose. Yet, because these harms lack a paper trail or a clear decision point, they often fail to meet the legal threshold of “material adversity.”

Employers, too, have little incentive to confront this reality. Acknowledging that peer silence and social ostracism constitute retaliation would mean accepting a broader sphere of accountability—not just for official decisions but for the culture they cultivate and the norms they tolerate. It would mean investigating emails, performance reviews, atmospheres, absences, and relational shifts. That’s uncomfortable. It’s also unquantifiable. And for institutions accustomed to risk containment, it poses a threat.

So, the law remains willfully narrow. Courts cling to standards that reward form over function. Employers issue policies while ignoring patterns. And in the gap between legal theory and lived experience, survivors are left unprotected—not just from formal retaliation but from the cold, cumulative violence of silence.

V. The Case for Doctrinal Expansion

If the retaliation law is to fulfill its protective purpose, it must evolve to reflect how harm happens in modern workplaces. The current framework is outdated—not because it fails to prohibit retaliation, but because it fails to understand its mechanisms. Social exclusion, reputational harm, and peer-enforced silence are not incidental—they are core instruments of institutional retaliation, especially after a protected disclosure.

To address this, courts and lawmakers must abandon the fiction that retaliation is only actionable when it is formal, traceable, and managerial. They must recognize that institutional retaliation is often distributed, enacted through social dynamics rather than personnel files, and enforced by bystanders rather than supervisors. What makes these behaviors retaliatory is not their form—but their function: they punish, isolate, and deter protected activity.

The solution begins with a broader definition of adverse action. Courts should interpret post-complaint peer exclusion, coordinated silence, and relational sabotage as materially adverse when they result in reputational damage, professional isolation, or constructive exclusion. Jurisprudence already accepts that retaliation need not be economic (Burlington Northern) and that lateral career moves can be unlawful if they result in harm (Muldrow). The next step is to recognize that social dynamics—when weaponized—can carry equally damaging consequences.

To guide doctrinal expansion, retaliation should be understood not only as a disciplinary act but also as a relational phenomenon that operates across three overlapping forms:

• Formal retaliation, which includes terminations, demotions, or official reprimands;
• Informal retaliation, such as exclusion from meetings, gossip, or professional coldness; and
• Ambient retaliation is a cultural withdrawal marked by silence, avoidance, and collective disengagement that signals punishment without direct accusation.

Trauma-informed legal frameworks must account for all three because each deters protected activity, causes measurable harm, and reflects institutional betrayal in a different register.

In addition, courts should be empowered to evaluate retaliation contextually, not just transactionally. This allows juries to consider behavior patterns over time, even when no incident appears dispositive. It means assessing whether the institution, through omission or neglect, permitted a culture of hostility to take shape around the complainant.

For their part, employers must be held to affirmative duties: not only to refrain from retaliation but also to monitor for relational harm after a complaint is made. This includes tracking changes in team dynamics, investigating reports of peer exclusion, and addressing informal retaliation with the same seriousness as formal discipline. Silence must no longer be a shield. It must be treated as evidence of either complicity or failure to act.

Finally, retaliation enforcement must be trauma-informed. Investigators, judges, and adjudicators should be trained to understand how trauma reshapes perception, trust, and behavior—not only in complainants but also in bystanders. Legal analysis must account for what Freyd calls “institutional betrayal”: the harm caused by the original offense and the institution’s refusal to protect the person who reported it. Retaliation is not always loud. In many cases, it is the silence that speaks most clearly.

As a starting point, legislatures could amend state and local civil rights laws to recognize socially mediated retaliation explicitly. Model language might read:

“Retaliation shall include adverse social action, including exclusion, ostracism, or informal reputational harm, when such conduct is substantially motivated by an individual’s participation in protected activity and would dissuade a reasonable person from engaging in similar conduct.”

Such a provision would bridge the gap between formal liability and cultural accountability, compelling employers to monitor what they do and what they allow.

VI. Conclusion: Neutrality Isn’t Neutral

Retaliation is often imagined as an act of punishment—deliberate, visible, and managerial. But in reality, retaliation is frequently administered through omission, culture, and the so-called neutrality of people who choose not to act. When someone reports harassment or discrimination, what follows is often a slow social death: Colleagues disengage, opportunities evaporate, and trust becomes toxic. The law calls this collateral. But survivors know it as retaliation.

What courts call neutrality is often complicity. What employers call professionalism is frequently avoidance. And what institutions refuse to name—silence, distance, exclusion—becomes the cultural enforcement of hierarchy. These are not interpersonal misunderstandings. They are structural signals of punishment carried out through what trauma experts call ambient retaliation.

If we are serious about enforcing civil rights in the workplace, we must stop pretending that harm only exists in writing. We must acknowledge that retaliation operates formally and informally, visibly and culturally. Abandonment is a form of punishment. Silence is not the absence of action but the presence of pressure.

False neutrality is not just a social failure. It is a legal one. It allows institutions to maintain compliance while outsourcing retaliation to peer dynamics. It preserves the illusion of fairness while gradually erasing the victim. It also shields employers from accountability while isolating those who dare to speak up.

To protect the integrity of retaliation law—and the people it was meant to shield—we must expand our definitions, broaden our inquiries, and compel employers to monitor what they do and what they tolerate. The law must evolve to recognize retaliation not just in documents but in dynamics. Because in the real world, staying out of it is often just another way of helping retaliation.