The Fair Employment and Housing Act (“FEHA”) outlaws workplace retaliation against any employee who engaged in a protected activity, i.e., (1) made a charge of discrimination, harassment, retaliation or workplace misconduct contrary to a fundamental public policy, or who testified, assisted or participated in any manner in a related proceeding, or (2) opposed acts made unlawful by the discrimination laws, other statutes or fundamental public policies. No employer may discharge, demote, fail to promote, suspend or harass an employee because that employee has engaged in a protected activity. Retaliation by the employer is also outlawed against an employee who complains of unlawful treatment of another employee. FEHA and other statues and fundamental policies also protect an employee who mistakenly but reasonably and in good faith believes discrimination or other unlawful has occurred. Thus, a retaliation claim will lie even if the employee cannot prove that there was underlying discrimination or unlawful conduct, so long as the employee’s participation or opposition was reasonable and in good faith.
Proof of retaliation may be direct, i.e., employer statements explicitly referring to employees protected participation or opposition, or indirect and circumstantial, i.e., inferred by the facts and the surrounding circumstances. An employee who cannot produce direct evidence of retaliation may nevertheless create an actionable inference of retaliation by making out a so-called prima facie case, usually as follows:
- The employee engaged in a protected activity.
- The employee was treated adversely in the workplace, e.g., fired, harassed, denied promotion.
- The employee can demonstrate a causal link between the protected activity and the adverse employment action, through, for example, evidence showing that (1) the protected activity is near in time to the adverse employment action, i.e., temporal proximity, (2) employees in the same classification who did not engage in protected activity were not treated adversely, or (3) the employee was replaced by someone who did not engage in a protected activity.
In addition, even if the employer tries to explain the adverse employment decision as being the result of a supposedly “legitimate” business decision,” e.g., the employee was purportedly not meeting job performance standards, an employee may adduce evidence demonstrating that the employer’s so-called “legitimate business reason” was a “pretext'” or a ruse, designed to “mask” the true reason for the adverse employment decision, i.e., retaliation. Employees can rebut or counter a pretextual, so-called “legitimate business reason,” by showing that (1) the supposed “legitimate business reason” does not make business sense, (2) other employees who did not engage in protected activity were not subjected to the same adverse treatment or (3) the employer has given multiple or inconsistent explanations for the adverse employment decision which suggest dishonesty.
Quick action is usually required when an employee suspects he or she may have been subjected to retaliation because in most cases the employee must file a complaint with the Department of Fair Employment and Housing within one year. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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