Chapter Six. Retaliation

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I. Introduction

FEHA at California Government Code Section 12940(h) declares that it is an unlawful employment practice for an employer “to discharge, expel or otherwise discriminate against any person because the person has opposed any practices

forbidden under this part” (referring to Section 12940 which prohibits, among other things, sexual harassment and gender discrimination) “or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” A violation of California Government Code Section 12940(h) is referred to as retaliation. The federal Title VII has a similar anti-retaliation provision. A typical retaliation claim arises if an employee makes a claim of sexual harassment or gender discrimination and the employer responds with some type of adverse employment action against the employee. This chapter addresses retaliation claims.

If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then 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.

II. What is 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.

While both the individual harasser and the employer are liable for sexual harassment in California, the California Supreme Court has confirmed that generally only the employer is responsible for retaliation. Individuals are generally not liable for retaliation in California. (See discussion of Jones v. The Lodge at Torrey Pines Partnership, in Section IV of Chapter Five on employer and individual responsibilities. In footnote 4 of the California Supreme Court’s majority opinion, the Court specifically said it was not deciding the issue of whether or not a harasser may be held personally liable for retaliation.)
According to Judicial Council of California, Civil Jury Instruction, CACI 2505, in order for a plaintiff to prove retaliation, the plaintiff must prove the following elements:

  1. That the plaintiff was involved in an activity protected by FEHA;
  2. That the defendant engaged in an adverse employment action against the plaintiff; or that the defendant engaged in conduct that, taken as a whole, materially and adversely affected the terms and conditions of the plaintiff’s employment;
  3. That the plaintiff’s protected activity was a motivating reason for the defendant’s decision to take an adverse employment action against the plaintiff;
  4. That the plaintiff was harmed; and
  5. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

Title VII prohibits discrimination against an employee or job applicant who has “opposed any practice made an unlawful employment practice” by Title VII, or has “made a charge, testified, assisted, or participated in any manner” in a Title VII investigation, proceeding, or hearing.

III. Proving Retaliation

The success of a retaliation claim can turn on a determination of whether the defendant has taken an adverse employment action against the plaintiff. Under California law, in order to be considered an adverse employment action, the employer’s action must materially affect the terms and conditions of employment. This standard is called the materiality test. The following Case In Point explains what acts should be considered in determining whether an adverse employment action has taken place under the materiality test.

CASE IN POINT: Totality of the Circumstances Must Be Considered When Determining Whether an Adverse Employment Action Has Been Taken

In Yanowitz v. L’Oreal USA, Inc., the California Supreme Court concluded that the “proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment.” In using the materiality test, the California Supreme Court ruled that a trial court must consider the totality of the circumstances in determining whether alleged retaliatory actions taken against an employee rise to the level of “adverse employment action.” The California Supreme Court stated, “Contrary to L’Oreal’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”

In Yanowitz, the plaintiff, Elysa, refused to carry out an order from a male supervisor to fire a female sales associate who was “not good looking enough” and told her to “[g]et me somebody hot.” Elysa refused to carry out this order because she believed that it was unlawful discrimination.

After this refusal, she was subjected to hostile treatment which “undermined her relationship with the employees she supervised and caused severe emotional distress…” Elysa quit her job and sued for retaliation.

In Yanowitz, the California Supreme Court discussed what constitutes an adverse employment action in a retaliation case, and ruled that it is appropriate to consider the “totality of the circumstances” in determining whether an employer has taken adverse employment action against an employee. The California Supreme Court explains:

Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim….

The Court goes on to state that FEHA protects an employee against:
unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially

affect an employee’s job performance or opportunity for advancement in his or her career…. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions….

In contrast, under federal law, the materiality test is not the standard for defining an adverse employment action. Instead, the federal courts use the “deterrence” test to determine what constitutes an adverse employment action taken against an employee in a retaliation claim. The deterrence test is described by the United States Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White. Under Burlington Northern & Santa Fe Railway Co. v. White, an action that an employer intentionally takes that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination” is retaliation, as explained in the following Case In Point.

CASE IN POINT: United States Supreme Court Rules That Retaliation Includes Acts That Deter Reporting

In the 2006 United States Supreme Court case of Burlington Northern & Santa Fe Railway Co. v. White, the plaintiff, Sheila White, was the only woman working in the maintenance of way department at her employment, where operating a forklift was her main responsibility.

Sheila complained to her employer about the harassment she suffered at the hands of her immediate supervisor, Joiner. Joiner had repeatedly told her that women should not be working on forklift duty, and he made other insulting and inappropriate remarks to her in front of her male coworkers. The employer suspended Joiner and ordered him to attend sexual harassment training. However, the employer also removed Sheila from forklift duty and reassigned her to standard track laborer tasks. The employer explained that Sheila’s reassignment reflected coworkers’ complaints that a more senior man should have the less arduous and cleaner job of forklift operator.

Approximately two months later, after a disagreement between Sheila and a supervisor, the employer suspended Sheila without pay. Sheila invoked internal grievance procedures that resulted in a determination that she was not insubordinate, and she was reinstated. Sheila then filed a Title VII action in federal court against her employer, claiming that the reassignment of her job responsibilities and her suspension amounted to unlawful retaliation.

The issues before the United States Supreme Court were (1) whether the anti-retaliation provisions of Title VII confine liability for retaliation to employers’ activities that affect the terms and conditions of employment and (2) how harmful adverse employment actions must be to constitute retaliation. The Supreme Court held that the scope of the anti-retaliation provision of Title VII extends beyond workplace-related or employment-related retaliatory acts and harm, because a limitation to employment-related actions would not deter the many forms that effective retaliation can take. The Supreme Court also held that to prove retaliation under Title VII, a plaintiff must show that a reasonable employee would have found the employer’s actions materially adverse. The Court explained, “In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

CASE IN POINT: Protected Activity Under FEHA: Employee Need Not Necessarily Make a Specific Complaint to the Employer for a Finding of Retaliation

In Yanowitz v. L’Oreal USA, Inc., the California Supreme Court also considered what actions by the plaintiff may qualify as a protected activity under FEHA. The California Supreme Court found that if an employee refuses to carry out an order because the employee “reasonably believes” that the order is discriminatory, then the employee is entitled to claim retaliation against the employer for later adverse employment actions caused by the employee’s failure to comply with the order. This is true even if the order was not in fact discriminatory, and even if, as in this case, the employee does not explicitly tell the employer that he or she believes that the order is discriminatory.

The California Supreme Court in Yanowitz explains:
when the circumstances surrounding an employer’s conduct are sufficient to establish that an employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order is discriminatory, an employer may not avoid the reach of the FEHA’s antiretaliation provision by relying on the circumstance that the employee did not explicitly inform the employer that she believed the order was discriminatory.

However, the California Supreme Court notes, “Standing alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice … where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.”
Even though an employee’s unarticulated belief will not suffice, the Yanowitz court, quoting Wirtz v. Kansas Farm Bureau Services, Inc., emphasizes that it is clear that “[a]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.”

IV. Conclusion

Employers try to be subtle about retaliating against employees who report sexual harassment or gender discrimination. An employer will not always simply fire an employee, but rather they may start to give the employee poor performance reviews and pass the employee over for advancement. As a result, the California courts use the “materiality test” which means that the court will consider the totality of the circumstances in determining whether the employer has retaliated against the employee. As a part of this inquiry, the court will look at the unique circumstances of the affected employee in the context of the claim at the particular workplace. The federal courts use a slightly different test called the “deterrence test.” The inquiry is whether the employer’s action would have dissuaded a reasonable worker from making or supporting a charge of harassment or discrimination.

In the Yanowitz case, the California Supreme Court found it was enough to support a retaliation claim if the employer knew that an employee’s refusal to comply with an order was based on the employee’s reasonable belief that the order was discriminatory. However, the employee must still bring evidence that the employer knew the employee’s opposition to the order was based on the reasonable belief that carrying out the order would be discriminatory against another employee. Thus, it can be important for an employee to identify opposition to an order as based on a reasonable belief of discrimination if the order is carried out; the articulation of the employee’s belief that a directive of an employer is discriminatory will constitute evidence that the employer knew that the employee’s opposition was motivated by the purpose of avoiding discrimination.

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