As longtime advocates for fairness in the workplace, our Los Angeles employment attorneys primarily devote our energies to representing employees on the receiving end of inequity on-the-job. But there’s also value in explaining to employers how they can sidestep some of the most common issues that lead to California employment lawsuits.
Unlawful workplace retaliation is one of the most common sources of legal claims. It’s also potentially one of the costliest for employers. In a single recent years, nearly 6 in 10 claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) alleged retaliation, often in conjunction with other claims. It is the No. 1 type of employment discrimination alleged nationally.
What is Retaliation in an Employment Setting?
The term “retaliation” can have a few different meanings in an employment context, but it’s only illegal when it crosses the boundaries of state and federal fair employment laws.
In this context, retaliation occurs when an employer initiates a materially adverse action because an applicant or employee asserts or engages in rights that are protected under equal employment opportunity statutes. Such rights are referred to as “protected activities.”
Examples of protected activities would be things like:
- Refusing to comply with a directive the employee believes to be discriminatory. (This requires only a good faith belief by the employee that the conduct in question is unlawful or could become unlawful if repeated. They don’t have to prove the underlying act was, in fact, discrimination.)
- Filing a complaint of workplace discrimination (or indicating an intention to do so) regarding one’s self or other employees.
- Refusing sexually-charged advances at work or intervening to protect others at work.
- Requesting reasonable accommodations, as allowed by law, for one’s disability or religion.
- Filing a complaint with management about equal employment disparities.
- Gathering evidence in support of or preparation for a potential equal employment opportunity claim.
(This is not an exhaustive list, but provides a general sense of what might constitute as a protected activity as referenced in retaliation statutes.)
Employers don’t have to outright ban or fire someone for engaging in protected activities to run afoul of retaliation laws. If a company has policies that discourage a person from engaging in protected activities, they may be liable for workplace retaliation.
“Adverse action” here refers to things like firing, demoting, reassigning to a less desirable assignment, or initiating a pay cut.
To prove retaliation at work, plaintiffs must show:
- The person in question engaged in prior protected activity.
- The employer initiated a materially adverse action.
- Retaliation was the basis for the employer’s materially adverse action.
What Can Companies Do to Prevent Retaliation?
Employers need to play a proactive role if they want to prevent unlawful workplace retaliation. Human resources offices in particular should be mindful about empowering workers to report complaints and then facilitating a proper response by management.
Such a response should include a zero tolerance policy with respect to retaliation. In fact, the California Fair Employment and Housing Act (FEHA) requires employers with 5+ workers (even if those workers are outside of California) to have a clear, written policy to prevent harassment, discrimination, and retaliation.
Both employees and supervisors should be educated about this policy. While we recognize it may be human nature for someone accused of discrimination to lash out at the accusers, employees and supervisors need to understand that doing so may run afoul of retaliation laws.
It also requires a complete and fair internal investigation of such allegations. HR professionals should have a clear idea of whether the complainant is in a protected class, and if so, what additional steps need to be taken to ensure they are treated fairly.
If a workplace complaint is filed, HR professionals need to be monitoring the development of that situation, and clearly/thoroughly document these interactions.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
More Blog Entries:
Myths About California Wrongful Termination Claims, April 23, 2023, California Workplace Retaliation Lawyer Blog