Retaliation in employment claims serve as an additional protection for employees in California. In addition to being protected from discrimination due to race, gender, medical conditions, physical and mental disabilities, pregnancy and many other “protected categories”, employees who engage in “protected activities” cannot be retaliated against for doing so. How does this work?
What are the basic elements of a employment retaliation claim in California?
Under CA law, an employee seeking civil damages for retaliatory conduct by an employer must show the following elements:
- The employee(s) engaged in a protected activity
- The employer responded by taking an adverse employment action against that employee or those employees
- A causal connnection exists between the protected activity and the adverse employment action
What is a protected activity under CA Employment Law
A so-called “protected activity” is basically an employee exercising their legal rights under the laws of the State of California. Such activities can include the following:
- Making complaints about sexual harassment in the workplace
- Complaining about racial, gender, religious, sexual orientation, marital status or age discrimination at work
- Protesting unsafe working conditions
- Making legitimate claims for unpaid wages including overtime pay
- Refusing to engage in unlawful activity based upon a reasonable and good faith belief that the conduct is unlawful
- “Whistleblowing” (i.e. reporting employer conduct which violates state or federal laws to the proper authorities)
- A threat to file a charge of employment discrimination under the California Fair Employment and Housing Act (FEHA)
- Volunteering to testify in support of a co-worker making a claim of discrimination or harassment. It is also unlawful for an employer to take adverse action in anticipation of such testimony.
- Defending oneself against charges of sexual harassment
What is an adverse employment action under the laws of the Golden State?
An adverse employment action is any negative repercussions initiated by an employer either contemporaneous with or subsequent to the protected activity. Such actions must be “materially adverse” to the employee, which means that they would be likely to deter future victims of discrimination or unlawful conduct from coming forward and complaining. Such actions can include the following:
- Firing the employee (potential wrongful termination of employment)
- Demoting the employee
- Interfering with the employee’s prospects for future employment by refusing to provide a recommendation or job reference or providing an unjustified negative job reference
- Filing false criminal charges against the employee
- Reassignment of job duties including insisting on doing more arduous tasks
- Suspension without pay (even if later reinstated)
- Changing an employee’s work schedule to less desirable hours
- Other types of conduct which show that the employer has a retaliatory motive rather than legitimate business incentive
How is causation between the activity and the adverse employment action shown?
The final requirement of “causation” between the employee engaging in lawful and protected activities and the employer’s retaliation against the employee for doing or having done so can be shown as follows:
- The employer’s knowledge that the employee engaged in a protected activity (can be direct knowledge by the decision maker e.g. supervisor or boss or a “rubber stamp” by a subordinate to the supervisor
- Proximity in time between the activity and the adverse action (timing alone is usually not enough to show causation but, close proximity between when an employee engages in a protected activity and the adverse action taken by the employer can provide an inference of a retaliatory motive which the employer must refute with contrary evidence)
- Patterns of conduct consistent with retaliatory intent (hostile treatment over a significant period of time following the protected activity)
Oftentimes, the employer will attempt to provide a legitimate (i.e. non-retaliatory) reason for their actions. This then puts the burden upon the employee to show that the stated reason was mere pretext (i.e. that the employer is simply using their alleged legitimate motive as an excuse for their real motive).
Why it is always best to have a California Employment Law Attorney analyze any situation where it appears that an employer is taking it out on an employee for engaging in lawful and protected conduct?
Retaliation in employment claims in California are subject to many rules regarding evidence and proof. Because each potential claim must be looked at on its own merits, it is always best to have an experienced lawyer review the facts of any particular case and provide analysis. If you feel like you are being singled out or picked on by being demoted, having pay or hours altered, or even being fired for making a legitimate claim of discrimination or harassment in the workplace, call us now at 866-252-0735 to see if you have a case.