Retaliation under FEHA

Retaliation is defined as “Punishment of an employee by an employer for engaging in legally protected activity such as making a complaint of harassment or participating in workplace investigations. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment.” [source]. Federally, retaliation is the act of punishing an employee for attempting to bring up discrimination, harassment, accommodations, and more.

Retaliation is no different under CA law than it is under Federal law. In California, the Department of Fair Employment and Housing (DFEH), together with the FEHA (Fair Employment and Housing Act), cover all discrimination- and retaliation-related issues in the workplace.

Retaliation is outlined and defined in Cal. Gov’t Code § 12940, title 2. Government of the State of California, Division 3. Executive Department, Part 2.8. Department of Fair Employment and Housing, Chapter 6. Discrimination Prohibited, Article 1. Unlawful Practices:

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Therefore, in layman’s terms, it is illegal for an employer to take action against another because that person has expressed a dissenting opinion or action, namely against some form of discrimination, or another situation that could negatively impact the company.

Retaliation can take many forms, some of which are extremely hard to identify. In some work environments, a lack of communication and a policy of silence may make it difficult to discern when someone was retaliated against, or when you were targeted. You may be the victim in a toxic workplace or you may not have a positive relationship with your employer. Any action, therefore, could be construed as retaliation, so it is very important that you consider the full breadth of the situation – namely, what may have happened or what you may have done in the past to warrant present behavior from your employer.

We have provided some common examples of retaliation below for you to consider.

• Needless reprimands from employer
• Decreased performance evaluation or review
• Physical abuse
• Harassment and bullying
• Verbal abuse
• Spreading rumors or lies
• Threats
• Breaking contracts with affiliates
• Blacklisting
• Purposely scheduling difficult or impossible work times
• Targeted for minor violations or singled out for issues that are present with other coworkers
• Micromanagement and increase of scrutiny and attention to detail
• Reduced wages or docked pay
• Refusal of rights, such as meal breaks, medical leave, reasonable accommodations, and more
• Wrongful termination

A full list of labor code violations related to retaliation can be found here .

It is important to understand that retaliation is not only something that can happen to a single individual. Other coworkers can also suffer similar fates, especially if they held the same beliefs as you.

To better understand the causes of retaliation, you can consult the list below, where we have written some of the usual reasons that employers retaliate against workers.

• Filing a discrimination, harassment, or inequality charge
• Filing a complaint with Human Resources
• Refusing to obey orders that result in discrimination
• Whistleblowing or revealing illegal or unsavory practices of the company
• Requests for reasonable accommodations for disabilities or religious worship
• Rebuffed sexual advances, requests for dates, or other flirtations
• Standing up for others in the face of harassment or discrimination
• Providing information during an investigation of harassment or discrimination
• Requesting salary information and pay rates

It is best to err on the side of caution when dealing with retaliation. You should reasonably assume that you were retaliated against if you participated in any of the aforementioned activities; it can remove any clouded judgment and allow you to observe the situation clearly.

Retaliation is illegal in many forms, and if you do choose to file a lawsuit, your employer can be held liable for the action. Your manager, as well as the company itself, can face numerous repercussions. For one, the manager can lose his job and be prevented from attaining another position in the field. Additionally, the company may be fined a large amount of money. If you file a civil claim against the company, the business can pay for damages.

If you suspect that you have been retaliated against, it is important that you gather as much evidence as you can of the violation. Often, the most damning evidence is simply an affirmation from your employer that you were targeted for your actions. However, it is exceedingly rare – and would be an unwise move – for your employer to outright state that he retaliated against you for what you did.

It is in your best interest to gather all the evidence you can of the retaliation. To start with, you should properly document the events leading up to the retaliation to the best of your ability, whether by recreating from memory or piecing together a timeline with the help of coworkers.

You can use any documents you have on hand to build this chain of proof. You may wish to use emails from your boss or between you and another party, messages exchanged between you and Human Resources, and any other instances of communication. You should also make sure that you do go to Human Resources to file a complaint. Although Human Resources has a primary goal of protecting the company, it is still a good idea to have some proof that you approached the company with a complaint and sought a solution. Human Resources may not address the issue or may simply turn you away; at times, it is in their best interest to simply terminate you instead of to address the situation and come up with a way to fix it.

Additional evidence can also be used, such as proof of broken contracts, videos of harassment, audio files or recordings of abuse, copies of notes and reviews compared to work quality and performance, medical notes for accommodations, proof of voting or visits to court, pay statements prior to and after the retaliation, and more.

Perhaps most powerful is the testimony of others. Your coworkers can provide additional statements to support you, but unfortunately, it is often seen as a dangerous option. The coworkers themselves may be retaliated against by your employer if he finds out they were cooperating with you and provided proof. They may fear losing their jobs, and for some, that risk is not worth it.

In order to file a claim, you must submit your evidence to the EEOC or DFEH (depending on if you want to file a Federal or State claim, respectively). The organization will look over your case and decide if you have grounds to file a claim. Upon receiving the right-to-sue letter, you must take legal action within the specified amount of time. The EEOC has a 180-day statute, while the FEHA mandates a 300-day statute. If you choose to file under California law, the statute of limitations to sue for retaliation is 1 year from the date of the receipt of the right-to-sue letter. A Federal claim can be filed up to 90 days after the letter is received.

If you do not sue within the appropriate limit, you will be barred from receiving any compensation at all.

There are some exceptions to the statute of limitations that can alter the time limit. For example, the time limit may be extended if the defendant is not present in the state or country. It would then be suspended until he returns, whether that is months or years later.

In some cases, the statute of limitations is largely decreased. If you intend to file a claim against a government entity, you will only have 45 days to submit your claim.

Workers who have been retaliated against may be able to receive a fair amount of compensation for their damages. You should not be expected to lay down and receive losses because your employer decided to retaliate against you. You can receive the following damages from a retaliation lawsuit:

• Back pay to cover wages that were missed, declined, docked, or otherwise lost
• Future income to cover salary that you could not earn because of ongoing court cases or because you are out of a job for the time being due to wrongful termination
• Reinstatement of your previous position if you were wrongfully terminated (although many workers who have been retaliated against choose to deny or defer this particular award, as they may feel as though they will be continually harassed, further targeted, or retaliated against in the future)
• Punitive damages that are essentially additional forms of compensation meant to punish the employer and dissuade him from acting the same way in the future

In some cases, multiple employees and workers could have been retaliated against. It may be in everyone’s best interest to band together and be represented by a single attorney in a class-action lawsuit against the employer. This can allow a ton of evidence to be consolidated and used to win the claim. A downside is that, in the event of a successful claim and victory against the business, the compensation will be equally distributed amongst the plaintiffs, which leads to considerably less payment overall.

Ultimately, it is up to each worker to decide what kind of claim he wishes to file: a personal lawsuit, or a class action claim.