Understanding the Definitions of Retaliations and How Issues Can Arise
Retaliation is an unfortunately common problem that can occur when an employee engages in a protected activity with an adverse impact on their employer. Workplace retaliation can manifest in many forms, some of which may not be immediately obvious to employees but are no less serious or lawful.
If you believe your boss may be retaliating against you, it is important to determine whether the reason for the negative action is a result of a protected activity and whether the behavior legally qualifies as retaliation. California has many state-specific rules about what constitutes retaliation. Below, we cover the types of activities that are protected in California, the behaviors that are defined as retaliation, and what you should do if you believe you were retaliated against.
Fair Employment and Housing Act and Equal Employment Opportunity Commission
California’s Fair Employment and Housing Act (FEHA) and the federal government’s Equal Employment Opportunity Commission (EEOC) both enshrine worker protections against retaliation. Both outlaw any actions that discriminate or otherwise adversely impact protected actions. Retaliation claims can be made to either department in California, and the act of filing a claim with either is itself a protected action.
Many protected activities are linked to reporting an employer for discriminatory practices or participating in an investigation involving discrimination in the workplace. These activities are defined in both FEHA and EEOC.
To review what qualifies as workplace discrimination, understand that an employer cannot retaliate against you as a direct result of your:
- Sex (including pregnancy or being a parent)
- Gender identity
- Sexual orientation
- National origin or ancestry
- Religious identity
Employers also cannot retaliate against a disability, unless the disability prevents you from doing your job. Generally, discrimination under these conditions occurs in the hiring process in situations where an employer refuses to advance applicants of a protected class. However, workplace discrimination can happen in circumstances where a condition appears or evolves – if you grow older or become pregnant, for example – or if your employer learns about some other aspect of identity, like that you identify as gay or belong to a particular religion. Attempting to report workplace discrimination or helping a colleague experiencing workplace discrimination often results in retaliation.
Retaliation can occur because of an action an employee takes in opposition to their employer. Often, these protected activities consist of refusing to do something unlawful or holding an employer accountable.
Some examples of protected activities include:
- Refusing to do something unlawful
- Refusing to do something that would result in discrimination
- Refusing sexual advances
- Intervening on behalf of someone being sexually harassed or discriminated against
- Communicating with a supervisor or HR department about a problem
- Participating in legal action against an unlawful activity, including assisting in an investigation
- Discussing wages with colleagues
Types of Retaliation
Retaliation can take many forms – some obvious, some not. The law defines retaliation as any “materially adverse” action, up to and including the firing of an affected employee. Often, retaliation is meant to signal that an employee should not raise any further issues or register official complaints.
Some common signs of retaliation include:
- Termination or dismissal
- Demotion or reduction of duties
- Arbitrary or targeted discipline
- Arbitrarily negative performance reviews or evaluations
- Salary reductions or unusual reduction of hours
- Abrupt exclusions from company meetings and events
An employer also cannot physically or verbally harass or intimidate their employees or, if the worker is undocumented, threaten to report them to the authorities. Your boss cannot spread gossip about you, either, or attempt to harass your family.
Keep in mind that it is possible to experience some of the above actions, like termination, demotion, or a negative performance review, without actually experiencing unlawful retaliation. Retaliation only occurs if the materially adverse action occurs as a direct result of a protected activity.
To illustrate this point, consider two examples. In the first, an employee is frequently late to work, often makes mistakes in the course of conducting their duties, and takes time off without advance approval. They receive a negative performance review, a reduction of hours, and, when the behavior does not measurably improve, they are terminated. The employee also happened to participate in an investigation involving an FEHA complaint, but this still is not an example of retaliation. The employee’s participation in the investigation is not the reason they were disciplined and ultimately terminated, and an employer will likely be able to demonstrate poor performance was the reason for dismissal.
In our second example, however, consider an employee who consistently and ably performs their duties and has never been disciplined by their boss. This boss, however, begins sexually harassing a colleague, and the employee intervenes on their behalf and asks the boss to stop. Soon, the employee is given a surprisingly and seemingly unsubstantiated performance review. Their hours are then reduced until the employee is forced to quit and seek other opportunities. In this example, there is a clear relationship between the protected activity – in this case, the employee attempting to protect their coworker from harassment – and the materially adverse actions.
If you believe you are a victim of workplace retaliation, your first move should be hiring an experienced employment attorney. They can assess the situation and available evidence before advising you on the likelihood of success in pursuing a retaliation claim. Retaliation is very challenging to prove in court, and you should be aware of what will be required to successfully argue your case.
To prove your boss retaliated against you, you will have to establish the following:
- The protective activity you engaged in
- The materially adverse action you experienced
- The causal link between the protective activity and the materially adverse action
The final point – that causal link – is typically the trickiest to prove. Most employers will not admit to retaliation, even when challenged, meaning the onus is on you to provide evidence supporting your claim. Timing is often the biggest factor here, as you will need to establish a timeline of what happened before the protected activity and the deterioration of the boss-employee relationship that occurred afterward. You will also likely need to prove your boss had knowledge of your protected activity that consequently influenced the negative action against you.
At K2 Employment Law Group, we devote our practice to helping employees defend their rights throughout Los Angeles and the San Fernando Valley. We are a group of trial-ready employment lawyers with substantial experience arguing cases in the courtroom. Our team is backed by decades of experience and is ready to help you in your retaliation claim.
For a free, confidential initial consultation, dial (800) 590-7674 or contact us online.