Common Mistake #7 – Not Understanding Retaliation

   It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge with the DFEH or EEOC, participating in a sexual harassment investigation, or opposing discriminatory practices. If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive and the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation. When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation.

   Not understanding retaliation is mistake which can affect sexual harassment victims in two harmful ways. First of all, if a victim does not realize that the law allows liability for retaliation, the victim might fail to include facts relating to the retaliation in the Department of Fair Employment and Housing complaint, and could therefore lose the ability to raise a retaliation cause of action later in litigation. Secondly, if a victim of sexual harassment does not realize that it is unlawful for an employer to fire or demote him or her for making a sexual harassment complaint, the victim might be more likely to stay quiet and allow the harassment to continue. It is important that victims of sexual harassment understand that if they are fired for making a complaint or filing a sexual harassment lawsuit, they will be able to bring an additional cause of action for damages due to unlawful retaliation.

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