Employee Retaliation
What is the Law?
California Public Policy and FEHA prohibits employers from retaliating against an employee because:
- The employee opposes practices forbidden by the FEHA (i.e. discrimination or harassment);
- The employee has filed a complaint, testified, or assisted in any DFEH or court proceeding related to a FEHA claim.
- The employee is a whistleblower.
What is the Law?
To bring a claim for retaliation an employee must prove all of the following:
ELEMENT 1
the employee was engaged in a protected activity;
ELEMENT 2
the employer subjected the employee to an adverse employment action and
ELEMENT 3
a causal link existed between the protected activity and the employer’s action (i.e. Retaliatory Motive).
Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation “”drops out of the picture,”” and the burden shifts back to the employee to prove intentional retaliation.
WHAT IS PROTECTED ACTIVITY?
Protected conduct can take many forms. An employee can engage in protected activity by doing the following:
- Refusing to carry out an order because the employee believes that it any is forbidden under the FEHA, such as when the employer tells an employee to terminate an subordinate because the subordinate is too old.
- Opposing any practice that the employee reasonably believes is a violation of law.
- Filing a complaint, testifying, or assisting in any proceeding that is governed by DFEH or other state or federal agencies.
- Seeking the advice of the DFEH, irrespective of whether the employee files a DFEH complaint.
- Helping a person who is seeking the advice of the DFEH, irrespective of whether a complaint is filed.
- Filing an internal complaint with the employer.
- Engaging in the interactive process with the employer for a reasonable accommodation.
- Requesting CFRA/FMLA leave.
- Requesting time off for a disabilit
Rule:
A retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the DFEH
HOW TO PROVE RETALIATORY MOTIVE
The retaliatory motive can be proved by establishing that the employer was aware that the employee engaged in protected activities and that the adverse action followed within a relatively short time thereafter. Court’s refer to this as “proximity in time” between the protected action and allegedly retaliatory employment decision.
WHO IS LIABLE?
A retaliation claim can only be brought against the employer. An employee cannot sue the individual who retaliated against him.
