FEHA Retaliation

The Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, also protects an employee against retaliation from an employer, labor organization, employment agency, or person

It is an unlawful employment practice for an employer to terminate the employment of an employee or otherwise discriminate against an employee because he or she opposed practices by the employer that violated their rights under the FEHA (e.g. race discrimination) or because he or she filed a complaint, testified, or assisted in any proceeding brought under the FEHA. California Government Code section 12940. The 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 job applications.

To bring a claim for retaliation a plaintiff must show that:

• The employee (or other protected person) was engaged “in a protected activity,” (e.g. refusing to follow the explicit instructions of a supervisor to terminate a dark-skinned employee because the supervisor did not find the dark-skinned employee to be sufficiently physically or sexually attractive)
• “The employer subjected the employee [or other protected person] 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.

An “adverse employment action” as used under the FEHA is an action that materially affects the terms, conditions, or privileges of employment. “An ‘adverse employment action,’ which is a critical component of a retaliation claim . . ., requires a ‘substantial adverse change in the terms and conditions of the plaintiff's employment.’” Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063. Examples of an “adverse employment action” include termination of employment; a reduction of salary, benefits, or work hours; undeserved negative job reviews; or intentionally ignoring health concerns due to environmental conditions in the workplace repeatedly raised by an employee.

A protected activity may include making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under FEHA statutes, or opposing acts made unlawful by FEHA statutes. California Government Code section 12940(h). For instance, it would be unlawful for an employer to terminate a worker who threatened to file a charge of employment discrimination (based on race, religious creed, color, national origin, ancestry, physical or mental disability or medical condition, marital status, gender, sexual orientation, age, or pregnancy, childbirth or related medical conditions) against the employer, because to do so would constitute unlawful retaliation. See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 815.

Further, an employee may not be retaliated against if the employee opposes an activity by the employer that 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 recognized by California law may not be terminated for trying to oppose or report that behavior. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1044.

Example: Cynthia Francene George was employed as an administrative law judge. She was assigned to the Fresno office of the California Unemployment Insurance Appeals Board. George, along with the other administrative law judges assigned to the Fresno office, were required to travel to outlying areas within the San Joaquin Valley to conduct unemployment insurance appeal hearings. Eventually, George noticed that travel assignments amongst the administrative law judges were not being equally distributed. She investigated the method used to make assignments and learned from a calendaring supervisor that two of her male colleagues were given preference in travel assignments. George conducted statistical analysis of the travel assignments. Although her numbers did not show a clear gender bias, they did indicate that travel assignments were not evenly distributed. George prepared a memo documenting her research, which she distributed to her colleagues. She discussed her concerns with the presiding judge and told him that she believed male judges received preferential treatment in travel assignments. She did not specify that she believed the preferential treatment was “discrimination,” but she did believe that the preferential treatment had created an unfair system of travel assignments. A colleague, Temple, told George she was concerned that if George pursued her complaints, it would lead to the head office in Sacramento controlling how travel was assigned in Fresno. Temple believed that the best way to handle travel in Fresno was to be flexible so individual employee preferences could be accommodated. Temple warned George that she would be “sorry” if she pursued her complaint.

George nonetheless filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging she was subjected to “differential treatment, [and] assigned less favorable overnight travel” in violation of the FEHA. Soon thereafter, the Fresno office modified its travel assignment procedure to a standardized rotation, eliminating George’s concerns of gender bias. A few months later, her colleague, Temple, who had warned George that George would be sorry if she pursued her complaint, was promoted to the position of presiding judge. As a result of a number of ensuing allegations of misconduct, based in part on attendance and punctuality issues, George was suspended three times. George then filed a lawsuit alleging that the three suspensions were in retaliation of George having filed the complaint with the DFEH. The case went to trial and a jury found that George was subjected to FEHA retaliation, as she had engaged in protected activity (complaining of discrimination), had suffered an adverse employment action (three suspensions, some without pay), and that her complaints of gender discrimination were a motivating reason for the decisions to discipline her.

On appeal, the Court of Appeal, Fifth Appellate District, affirmed the jury verdict. The court ruled that even if Temple’s statement that George would be sorry if she pursued her complaints was not a direct threat of retaliation, an inference could be drawn that Temple's displeasure with how things turned out (Sacramento imposing standardized travel assignments on the Fresno office as Temple had predicted) gave rise to retaliatory intent given that Temple was the decision maker at the time of George’s suspensions. George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475.

Example: A customer service representative is sexually harassed at the workplace and files a complaint about the harassing employee. The harasser has friends in management. The harasser persuades the company president to fire the worker for making the complaint about him. The company president tells the worker he is firing her for failing to respond to a customer inquiry within 24 hours. Given there is no strict company policy on the time limit for responding to customer inquiries, and given that she was fired only three days after complaining of sexual harassment, the worker suspects the real reason she was terminated was for making the complaint. Because making a sexual harassment complaint is a protected activity, and the employer terminated the worker because of it, this series of events would most likely qualify as FEHA Retaliation.

If you have experienced retaliation at your workplace, contact the retaliation lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.