FEHA Retaliation

FEHA Retaliation

Retaliation under California’s Fair Employment and Housing Act (FEHA) refers to any adverse action taken by an employer, manager, or co-worker against an employee because the employee engaged in a protected activity. Protected activities under FEHA include, but are not limited to, filing a complaint of discrimination or harassment, participating in an investigation or litigation of discrimination or harassment claims, or opposing practices forbidden under FEHA, such as workplace discrimination or harassment based on race, sex, age, disability, sexual orientation, gender identity, and other protected characteristics.

Key aspects of retaliation under FEHA include:

1. Protected Activities: Engaging in activities such as filing a complaint with the Department of Fair Employment and Housing (DFEH), reporting or resisting any form of discrimination or harassment, or assisting others in asserting their rights under FEHA.
2. Adverse Actions: Actions by an employer that negatively affect the employment status or work environment of an employee. This can include termination, demotion, reduced work hours, transferring the employee to a less desirable position, unjustified negative evaluations, increased scrutiny, or any other action that would likely deter a reasonable person from engaging in protected activities.
3. Causation: To establish a case of retaliation, an employee must demonstrate that the adverse employment action was taken because of their participation in a protected activity. There must be a causal link between the employee’s protected activity and the employer’s retaliatory conduct.
4. Employer Defense: Employers accused of retaliation under FEHA can defend themselves by showing that the adverse action was taken for legitimate, non-retaliatory reasons, such as poor job performance or downsizing.
5. Remedies: Employees who prove they were subjected to retaliation can be entitled to remedies, including reinstatement, back pay, promotion, damages for emotional distress, and attorney’s fees.

Specifically, the relevant statute hold that it is unlawful for an employer to “discriminate against any person because the person has opposed” acts of harassment or discrimination. (Gov. Code § 12940, subd. (h)).

Government Code section 12940, subdivision (j), defines “unlawful employment practice” to include harassment in the workplace based on national origin, sex, and age. Under the statute “harassment” in the workplace can take the form of “discriminatory intimidation, ridicule and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35).

FEHA’s anti-retaliation provisions are designed to encourage individuals to come forward with their grievances regarding discrimination and harassment without fear of retribution from their employers. The law seeks to create a workplace environment where all employees can exercise their rights to a discrimination-free workplace.