California law protects employees from many different types of retaliation. This article explores three of the most common types of protected conduct:
- Conduct that is protected by the Fair Employment and Housing Act, California Government Code section 12940, et seq.;
- Conduct that is protected by California’s Whistleblower Protection Act, California Labor Code section 1102.5; and
- Conduct that is protected by California’s fundamental public policies.
Retaliation under California’s Fair Employment and Housing Act
A plaintiff claiming retaliation under the Fair Employment and Housing Act, or FEHA, must prove each of the following:
- That the employee engaged in a protected activity;
- That the company took an adverse employment action against them;
- That the protected activity was a substantial motivating reason for the company’s decision to take adverse employment action against the employee;
- That the employee was harmed; and
- That the company’s conduct was a substantial factor in causing the employee’s harm.
See Judicial Council of California Civil Jury Instructions (“CACI”) 2505. These elements are explored in more detail below.
Protected activity can come in many different forms. For example, if a person opposes any conduct forbidden by the FEHA, or has filed a complaint that alleges violations of the FEHA, they have engaged in protected activity. See Government Code §12940(h).
Common examples of adverse employment actions include termination, demotion, and failure to promote.
A “substantial motivating reason” is a reason that actually contributed to an adverse employment action. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the adverse employment action. See CACI 2507. Common evidence relied upon to show this level of causation includes (1) circumstantial evidence showing retaliatory animus; (2) the fact that the decision maker knew about that complaint; (3) comparator evidence showing that other employees were treated differently; and (4) the timing of the adverse employment action.
The harm suffered by the employee can include lost wages and emotional distress such as depression and sleeplessness.
Retaliation under California’s Whistleblower Protection Act
Claims under California’s Whistleblower Protection Act are explored in more detail here.
Retaliation that Violates California’s Fundamental Public Policies
Retaliation by an employer that violates California’s fundamental public policy is also illegal. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090. A public policy is “fundamental” when it meets the following tests: (1) It is “carefully tethered” to a policy “delineated in constitutional or statutory provisions”; (2) it involves a duty affecting the public at large; and it “ ‘well established’ ” and “sufficiently clear” at the time of the discharge. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256.
A good example of this type of retaliation is found in Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1146–47, as modified (Feb. 9, 1995). There, the court held that it was a violation of public policy for an employer to fire an employee in order to avoid paying him the wages and vacation pay that it owed him.
Choosing a California Retaliation Lawyer
The attorneys at Hunter Pyle Law have handled many different types of retaliation cases in Oakland and the surrounding areas. For example, Hunter Pyle represented a cook who complained about smoking in the kitchen of the Dim Sum restaurant where he worked. That case settled after the worker prevailed in a jury trial in San Mateo County. Mr. Pyle and Tanya Tambling also recently represented a woman who had worked for a large corporation for almost 40 years. She was terminated after she complained about age discrimination. That case settled for a confidential amount shortly after it was filed.
If you believe that you have been retaliated against, please feel free to contact us for a free and confidential initial intake.