RETALIATION
Protecting Employees From Workplace Retaliation and Unlawful Employer Actions
If you report, or oppose, or refuse to participate in unlawful employment conduct, policies, or practices of your employer, and as a direct result you suffer adverse employment action (i.e. a termination, demotion, reduction in duties, etc.) then you may have a claim for workplace retaliation. Under California law, an employer may not terminate or take adverse action against an employee for whistleblowing, which generally consists of an employee reporting, complaining about, or opposing, conduct, policies, or practices that the employee reasonably believed were unlawful.
RETALIATION CLAIMS UNDER CALIFORNIA LAW
To bring a successful retaliation claim, you do not have to prove that you were correct in your believe the conduct, practices, or policies were unlawful. You just have to show that your belief in the unlawfulness of the conduct etc. was reasonable, and in good faith. (Yanowitz v L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1046.) Therefore, your retaliation claim may be valid even if
a court or jury later finds the conduct you opposed or reported was not actually against the law. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 475).
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WHO CAN BE HELD LIABLE
Only employers, and not supervisors or co-employees can be liable for retaliation against an employee in violation of Cal. Gov. Code§12940(h) (Jones v. Lodge of Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173), or the ADA. (Walsh v. Nevada Dept of Human Resources (9th Cir.2006) 471 F3d 1033, 1037-1038.)
Religious organizations are exempt from liability for retaliation under both federal statutes (Garcia v. Salvation Army (9th Cir. 2010)) and California’s FEHA. (Mathews v. Happy Valley Conference Ctr. Inc. (2019) 43 Cal.App.5th 236, 260-261.)
REQUIREMENTS TO PROVE RETALIATION
In order to establish a retaliation claim you must show that the conduct, policy, or practices you reported or complained about were reasonably believed by you to be unlawful.
Your complaint or report must be made to someone other than the bad actor you were reporting or complaining about.
You must also show the adverse action against you was taken in direct response to your report or complaint of what you believed to be unlawful action.
(Yanowitz v L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1044; Lewis v. City of Benicia (2014) 224 Cal. App. 4th 1519, 1535-1536.)
TIMING AND RETALIATORY ACTIONS
If the retaliatory action takes place shortly after the employee’s report, complaint, or opposition, a strong argument can be made that the adverse action was a direct result of the report, complaint or opposition despite an employer’s typical pretext or false excuse for the retaliatory adverse employment action. (McRae v. Dept. Of Corrections & Rehab. (2006) 142 Cal.App. 4th 377, 388; Santillan v USA Waste of Calif., Inc. (9th Cir. 853 F.3rd 1035,1047-1048; Flores v. City of Westminister (9th Cir. 2017) 873 F3d739, 750.)
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