It is an unlawful employment practice if an employee is discharged, expelled, or discriminated against because he or she opposed practices by the employer that violated their rights under FEHA or because he or she filed a complaint, testified, or assisted in any proceeding brought under FEHA. Cal Gov Code § 12940. FEHA’s protection against retaliation is not limited only to employees, but is actually intended to protect any person, such as prospective employees, former employees, and even people submitting applications.
To bring a claim for retaliation a plaintiff must show that:
- the employee was engaged “in a protected activity,”
- “the employer subjected the employee to an adverse employment action,” and
- “a causal link existed between the protected activity and the employer’s action..” Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal. 4th 1028, 1042.
A protected activity may include: making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under the statutes, or opposing acts made unlawful by the statute. Gov. C. §12940(h). For instance, it would be unlawful for an employer to terminate a worker who threatened to file a charge of employment discrimination against the employer, because to do so would constitute unlawful retaliation. Iwekaogwu v. City of Los Angeles (1999) 75 CA4th 803, 815.
An “adverse employment action” as used above means under FEHA an action that materially affects the terms, conditions, or privileges of employment.
Further, an employee may not be retaliated against if the employee opposes activity by the employer which the employee believes reasonably and in good faith to be unlawful. So, an employee who honestly and reasonably believes that an employer is committing a wrong may not be terminated for trying to oppose or report that behavior. Yanowitz v. L’Oreal USA, Inc. 36 C4th 1028, 1044.
Example: A worker is sexually harassed at the workplace and files a complaint about the harassing employee. The harasser has friends in high places, however, and has the worker fired for making the complaint about him. Because making a sexual harassment complaint is a protected activity and the employee was terminated because of it, this series of events would most likely qualify as Retaliation against FEHA.Contact Us