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Employment - Retaliation

SUMMARY OF STATE AND FEDERAL LAWS REGARDING UNLAWFUL RETALIATION

California employees are protected from unlawful retaliaion in the workplace under both Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. 2000e et seq.] and California's Fair Employment and Housing Act ("FEHA") [Gov. Code 12900 et seq.]. An employee usually chooses to sue under either Title VII or FEHA in state or federal court - although it is usually to an employee's advantage to sue under FEHA in state court.

The FEHA applies to any employer with 5 or more employees, and all employers are subject to harassment claims under the FEHA.  To establish a claim for unlawful retaliation, an employee must prove:

• The employee engaged in a protective activity;
• The employer subjected the employee to an adverse employment action (e.g., fired or demoted the employee);
• A causal link exists between the protected activity and the adverse employment action;
• The extent and nature of the employee's damages; and
• If the employer articulates a legitimate, nonretaliatory reason for the adverse employment action, the employee must prove the employer's proffered reason is pretexutal.

Examples of protected activies include:

• Making a charge, testifying, assisting or participating in any manner in proceedings or hearings under either Title VII or the FEHA - e.g., making a charge of sexual harassment, or testifying in a deposition about witnessing a supervisor sexually harassing another employee, or reporting to a supervisor that you witnessed someone being sexually harassed;
• Opposing acts of unlawful harassment, discrimination, or retaliation;
• Reporting violations of state or federal law to governmental agencies; or
• Refusing to violate federal or state law.