Today, there are numerous definitions of workplace retaliation. California’s laws on this subject are not only found in multiple places but also concern a variety of issues. Laypersons think of retaliation as retribution or revenge. However, this is incorrect from a legal standpoint. As a legal term, retaliation refers to a situation when your employer punishes you for engaging in protected activity.
Sometimes it is clear when your employer’s actions are adverse like when they terminate your employment. However, other times it is not. In these cases, you should consider all your situation’s circumstances. A case in point is an objectionable change in job shift that affects a parent with young kids.
What is Retaliation?
Workplace retaliation refers to unlawful discrimination that happens when an employer, labor organization, or employment agency takes adverse actions against an employee, job applicant, or any other covered individual because they engaged in protected activity.
Protected activity refers to a situation when you assert Equal Employment Opportunity (EEO) rights that protect you from employment discrimination or harassment. Protected activity can arise in various forms. It is considered unlawful for employers to retaliate against employees or applicants for:
- Filing an EEO charge, complaint, or lawsuit
- Acting as a witness in an EEO complaint, charge, investigation, or lawsuit
- Answering questions in an inquiry into alleged employer harassment claims
- Communicating with a supervisor about employment discrimination and harassment
- Resisting sexual advances
- Intervening to protect a colleague against harassment
- Refusing to follow orders resulting in discrimination
- Requesting accommodation for religious practice or disability
- Asking co-workers or managers about salary information to unearth potentially discriminatory wages
Your participation in a complaint or investigation process is protected from any retaliatory activity under all circumstances. Additionally, other acts you undertake in that oppose or expose discrimination are also protected as long as you were acting on a reasonable belief of a potential EEO law violation.
However, engaging in EEO activities does not necessarily shield you from all employer discipline or even discharge. This means that your employer has the freedom to terminate or discipline you if motivated by a non-discriminatory or non-retaliatory reason that would otherwise warrant such consequences.
As it stands, your employer is not allowed by law to react in response to an EEO activity that would discourage you from complaining about or resisting future discrimination. For example, it could be considered retaliation if your employer acts in response to your EEO activity in the following ways:
- Reprimand you
- Give you a lower performance value than you deserve
- Engage you in physical or verbal abuse
- Increase scrutiny
- Transfer you to a lesser position
- Spread false rumors about you
- Treat your family members negatively like canceling a contract with your spouse
- Threaten you or report you to the authorities for example regarding your immigration status
- Make your work environment more difficult for instance purposefully changing your schedule to clash with family responsibilities
The Difference between Retaliation and Unlawful Retaliation
Retaliation is only considered unlawful when your employer wrongly punishes you for engaging in EEO protected activities or opposing illegal conduct. This means that not all forms of retaliation are illegal. Protected activities fall into a broad spectrum of behaviors.
Therefore, to know or prove you are a victim of retaliation, you need to ascertain three things:
- The protected activity that you engaged in
- The adverse action that your employer took against you
- Knowledge of a connection between the adverse action you claim and the protected activity you took part in, like timing or statements.
Actions That Don’t Constitute Protected Activities
Unfortunately, many types of wrongful employer conduct are not legally protected. One typical example is when you make a general mistreatment complaint against your employer for treating your coworker favorably because they share a hobby like playing on the same adult soccer team. In this case, complaining or reporting such behavior would most likely not qualify as retaliation or legally protected conduct.
If you are concerned about what constitutes protected activities, it is advisable to contact a California employment attorney before filing a report. This allows you to have all the relevant facts at your fingertips and determine the best way forward.
What is Adverse Employment Action?
Adverse employment actions are described by the 1964 Civil Rights Act (under Title VII). Under the act, employment actions are considered adverse if you (a reasonable employee) find your employer’s behavior materially adverse. This means that the action taken against you may dissuade you from supporting or making a discrimination charge.
Actions like demotions and terminations are considered adverse employment acts when they are directly related to your retaliation claim. Other unfavorable employer actions deemed adverse are:
- Lateral transfers
- Unfavorable references, which do not have any effect on a prospective employer’s hiring considerations
- Change in work schedules that are unfair and burdensome to you
California’s Retaliation Laws
1.Complaining about Discrimination or Harassment
Perhaps the most common anti-retaliation law in the state is CA Government Code § 12940(h). This provision says that it is unlawful for any employer, person, employment agency, or labor organization, to expel or otherwise discriminate against an employee for:
- Opposing illegal practices at work
- Filling a complaint
- Testifying or assisting in any legal proceeding against their employer or boss.
The practices barred by the provision are harassment or discrimination based on sex, disability, race, gender, military status, sexual orientation, or age. In simple terms, if you are punished by your boss for opposing or complaining about harassment or discrimination, you have an actionable retaliation lawsuit to pursue.
2.Protesting Against Unsafe Work Environments
California State advocates for safe work environments. In fact, there is a whole labor code division (Labor Code § 6310) that addresses workplace safety.
Section (b) of the Labor Code § 6310 protects any employee that is threatened with discharge, or is discharged, suspended, demoted, and discriminated against in any other way concerning their conditions and terms of employment by their employer for filing a bona fide unsafe work environment complaint. Such employees are entitled to reinstatement as well as reimbursement of lost wages plus any other work benefits they missed as a result of their termination.
The section also protects employees who have not filed a claim but have participated in an employer-employee committee on occupational health and safety. Furthermore, it finds employers guilty of a misdemeanor for willfully refusing to rehire, restore, or promote an employee who is eligible for promotion or rehiring by a hearing, arbitration, or grievance procedure authorized by law.
3.Refusal to Violate a Law
Your boss may ask you to do or partake in illegal activity. Unfortunately, most people usually agree to do so for fear of losing their job. However, when you refuse to participate, it is unlawful for your employer to take adverse action against you.
CA Labor Code § 1102.5(c) states that an employer, or any other person acting on their behalf, should not retaliate against their employee for refusing to take part in an activity that violates any federal or state statute. The section also protects employees who comply with federal, state or local rules and regulations against the wishes of their employer.
Differences between Retaliation, Discrimination, Wrongful Termination, and Whistleblower
Often, the legal terms retaliation, discrimination, whistleblowing, and wrongful termination are used interchangeably. In fact, many of these laws overlap and intersect, which can be confusing for a layperson. The general definitions below will help you distinguish one from the other.
Whistleblower cases arise when you report to high-level management or the government that your employer is violating the law. These laws protect you from being fired or any other employer adverse actions. They also provide remedies in cases where the law is violated.
The Whistleblower Protection Act: On top of state and federal workplace retaliation and whistleblower laws, there are further special whistleblower retaliation laws, which protect government employees. This 1989 United States Federal Law protects whistleblowers who are government employees and report agency misconduct. It protects government employees who provide evidence against their employer regarding law violation, gross mismanagement, abuse of authority, waste of funds, or danger to public safety or health.
Discrimination law cases focus on protected classes as opposed to protected activities. Some of the protected classes under California discrimination law include race, religious creed, marital status, genetic information, gender, sex, age, gender expression and identity, sexual orientation, military or veteran status, medical condition, national origin, ancestry, color, physical disability, or mental disability.
Wrongful termination law covers a broader range of unlawful termination reasons like those that involve public policy violation. An example is when you are fired for exercising your jury or voting rights.
What Retaliation Attorneys Help You Recover
Retaliation lawsuits can be quite complicated, and you require a skilled retaliation attorney to represent you successfully. These are some of the damages you may recover with a good lawyer on your side:
- Economic Damages: Refers to the lost wages owed to you after your wrongful termination due to unlawful retaliation.
- Attorney’s Fees: Because the cost of retaliation lawsuits can be quite high, you are allowed to sue the other party to recover the attorney’s fees you spent.
- Punitive Damages: These are awarded to you as a form of punishment to the wrongdoer. However, these damages are not always guaranteed, and you need to prove that your employer acted with malice, fraud, and oppression.
- Emotional Distress: Often, the pain or suffering you endured as a result of retaliation from your employer is assigned a monetary value. You may also experience psychological effects that lead to stress, sleeplessness, depression, or even diarrhea. You need to prove emotional distress you suffered to be awarded these damages. Ergo, they should be documented by a medical professional.
Due to the uniqueness of retaliation lawsuits in California, it is difficult to estimate how much damages you may receive in your case. Numerous factors influence the outcomes of these cases. Furthermore, lawsuit settlements are confidential meaning that there is little information available regarding averages.
All in all, with a skilled and seasoned attorney fighting in your corner, you can be assured of adequate representation in court. To further help your case, it is essential to document instances of unlawful retaliatory activity against you like keeping track of emails of performance reviews, memos, text messages, or photos of physical bruises.
Procedure for Filing a Retaliation Lawsuit Claim
Before following the legal route, you should first attempt to report any adverse employment actions to the concerned party and request them to avoid such behavior. If this fails, you should hire a lawyer as soon as possible because:
- They will advise you on whether or not you have a strong case, and how to proceed.
- There is also the issue of the statute of limitations, which applies to all employment cases (especially if you are a government entity employee). Your lawyer will advise you on how long you have.
- Before filing a lawsuit, your lawyer needs to gather facts and evidence concerning your case to use in court. Waiting for too long to hire an attorney makes it harder for them to collect the necessary facts.
If you have suffered adverse employment actions for your engagement in protected activity or have been terminated in violation of public policy, you are entitled to damages that include:
- Back pay
- Front pay
- Lost benefits
- Emotional distress damages
- Attorney fees and costs
- Punitive damages
It is imperative to hire a lawyer to represent you upon retaliatory termination immediately. Your lawyer will negotiate your reinstatement, fair working conditions, or seek appropriate damages on your behalf. They will also prevent you from being bullied by your employer’s attorney into accepting an unfair settlement.
When you are fired from your job or suffer adverse employment actions for engaging in protected activity, take immediate action. Call our sexual harassment lawyer at 800-905-1856 for a free consultation with one of our retaliation attorneys. California Sexual Harassment Attorney has a team of experienced lawyers based in California who will not only treat you with respect and dignity but also win your case.