If you are an employer in California, you may be facing the difficult and complex issue of a retaliation claim brought by an employee. Understanding the key elements that constitute a strong retaliation case is crucial for navigating such a challenge effectively. At SKT Law, we represent businesses and leadership teams and can provide the knowledgeable, proven counsel you need.
To build a strong defense against a retaliation claim, you should understand the three fundamental elements that the employee must generally prove: the employee engaged in a protected activity, the employer took an adverse employment action against the employee, and there was a causal link between the protected activity and the adverse employment action.
Let’s delve deeper into each of these elements to provide a clearer understanding of what makes a strong retaliation case from an employer’s perspective in California.
Understanding Protected Activity in Employment Law
The first element an employee must prove is that they engaged in a legally protected activity. Protected activity generally falls into two categories: opposition and participation. Opposition involves an employee opposing a practice that they reasonably believe is an unlawful employment practice under laws like Title VII of the Civil Rights Act of 1964 (Title VII) or the California Fair Employment and Housing Act (FEHA). Examples of opposition include complaining to you or HR about harassment or discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, disability, or other protected characteristics, voicing concerns about unequal pay based on sex, or refusing to obey an order that the employee reasonably believes is discriminatory. It is important to note that the employee’s belief that the opposed activity was unlawful must be reasonable. They do not necessarily have to prove that the practice was, in fact, unlawful.
Participation involves an employee participating in an investigation, proceeding, or hearing under employment discrimination statutes. Examples of participation include filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH), testifying, assisting, or participating in any manner in an investigation, hearing, or proceeding under Title VII or FEHA, or answering questions during an employer’s internal investigation into an alleged EEO violation.
“A strong legal defense against a retaliation claim begins with a thorough understanding of whether the employee’s actions are truly protected under the law,” states Eliot Krieger, co-founder and managing partner of SKT Law. “Many employers are surprised to learn what constitutes ‘protected activity.’ Having an aggressive and knowledgeable legal team on your side early in the process can help you assess the validity of the claim and formulate a strategic response.”
Defining Adverse Employment Action in California
The second element is that the employer must have taken an “adverse employment action” against the employee. An adverse employment action is any employer action that would dissuade a reasonable employee from engaging in protected activity. It’s not limited to just termination. In California, the definition can be quite broad. Adverse employment actions can include, but are not limited to:
- Termination: Firing the employee. This is a common basis for a wrongful termination retaliation California claim.
- Demotion: Reducing the employee’s job responsibilities, title, or pay.
- Reduction in Pay or Benefits: Decreasing the employee’s salary, wages, or benefits.
- Negative Performance Reviews: Giving an unwarranted negative performance review that could affect future promotions or opportunities.
- Undesirable Reassignments: Transferring the employee to a less desirable position or work location.
- Increased Scrutiny or Monitoring: Subjecting the employee to excessive or unwarranted supervision.
- Harassment: Creating a hostile work environment in response to the protected activity.
- Refusal to Promote: Denying a promotion for which the employee was qualified.
The key is whether a reasonable employee in the same circumstances would be discouraged from engaging in the protected activity because of the employer’s action. Minor or trivial annoyances are typically not considered adverse employment actions.
Establishing the Causal Link in a Retaliation Case
The third and often the most heavily contested element is the “causal link” between the protected activity and the adverse employment action. The employee must present evidence that the adverse action was taken because of their protected activity. This doesn’t mean that protected activity is the only reason for adverse action; it must be a substantial motivating reason.
Proving the causal link often relies on circumstantial evidence. One such piece of evidence is temporal proximity. The closer in time the adverse action is to the protected activity, the stronger the inference of causation. For example, if an employee is terminated shortly after reporting harassment, a court may infer a causal link. However, timing alone is not always sufficient to prove causation. Another factor is hearsay; statements made by supervisors or managers that suggest a retaliatory motive can be compelling evidence. For instance, a supervisor makes a derogatory comment about an employee’s complaint shortly before taking adverse action against them. Shifting reasons can also be a factor; if you provide shifting or inconsistent reasons for the adverse employment action, a court may view this with suspicion and infer a retaliatory motive. Finally, disparate treatment can be considered. If you treated the complaining employee differently from similarly situated employees who did not engage in protected activity, this could be evidence of retaliation.
“Establishing or refuting the causal link is often the lynchpin of a retaliation case,” says Krieger. “You need to meticulously document the legitimate, non-retaliatory reasons for any adverse employment action. A strong defense will present a clear and consistent narrative supported by objective evidence.”
FEHA Retaliation Elements and Title VII Anti-Retaliation
While the general principles of retaliation claims are similar under both federal law (Title VII) and California law (FEHA), it’s important to be aware of the specific provisions of the FEHA, as California law often provides broader protections for employees.
The FEHA anti-retaliation provision makes it unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under the FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under the FEHA. The elements of a FEHA retaliation claim are essentially the same as the general elements discussed above: protected activity, adverse employment action, and a causal link. When proving workplace retaliation CA, it is important to be familiar with the specific nuances of the FEHA.
Evidence for a Retaliation Lawsuit
If an employee is successful in a retaliation lawsuit in California, you may be responsible for the following:
As an employer, gathering and preserving evidence is crucial for defending against a retaliation lawsuit. This includes maintaining thorough and consistent documentation of employee performance, including performance reviews, disciplinary actions, and any warnings or counseling sessions. This is vital to demonstrate legitimate, non-retaliatory reasons for adverse actions. You should also ensure your company has clear, well-communicated policies regarding EEO, harassment, discrimination, and retaliation. Consistently applying these policies to all employees is crucial, as inconsistent application can be used as evidence of discriminatory or retaliatory motive. If there are witnesses to the events leading to the alleged retaliation, obtaining their statements is important. Finally, preserving all relevant business records, including emails, internal memos, and other documents that may be relevant to the case, is essential.
Damages for Workplace Retaliation in CA
- Lost Wages and Benefits: This includes back pay (wages and benefits lost from the date of the adverse action to the date of judgment) and front pay (future lost wages and benefits).
- Emotional Distress: Compensation for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life caused by the retaliation.
- Punitive Damages: In cases where the employer’s conduct is found to be particularly egregious or malicious, punitive damages may be awarded to punish the employer and deter similar conduct in the future.
- Attorney’s Fees and Costs: The successful employee can typically recover their reasonable attorney’s fees and litigation costs.
“The potential damages in a retaliation case in California can be substantial,” says Krieger. “Proactive legal counsel and a robust defense strategy are essential to protect your business from significant financial and reputational harm.”
SKT Law is based in Orange County, CA, and serves clients across the United States and internationally, including Vietnam, the Philippines, and Singapore. If you are an employer facing an employment claim in California, understanding the intricacies of retaliation law is paramount. The experienced attorneys at SKT Law are here to provide the strategic guidance and vigorous defense you need to navigate these challenges and protect your business. Schedule a consultation today to discuss your specific situation and learn how we can help you achieve a favorable outcome.