Retaliation Law Defense Lawyer DFEH FEHA

Definition. California law protects from retaliation employees who resist or object to discrimination or harassment. It is unlawful “[f]or any employer … or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, §12940, subd. (h).)


FEHA & EEOC Retaliation

The Fair Employment and Housing Act proscribes retaliation more broadly than discrimination. The general prohibition against discrimination extends only to discrimination “against the person in compensation or in terms, conditions or privileges of employment.” In contrast, the prohibition against retaliation states simply that an employer may not “discriminate” against any employee who opposes discrimination. (Yanowitz v. L’Oreal (2003) 106 Cal.App.4th 1036.)

The California statute prohibiting retaliation is the Fair Employment and Housing Act (“FEHA”). (Gov. Code, § 12940, et seq.)


The federal counterpart to FEHA, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.), also protects against retaliation for employees who have opposed or resisted discrimination or harassment.


Because FEHA and Title VII of the Federal Civil Rights Act of 1964 have the same anti-discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)

Elements of Retaliation, CACI Jury Instruction

It is illegal for an employer to retaliate against an employee who has opposed any practices forbidden under FEHA (e.g., racial discrimination). Paula, a woman of color, claims that Dan wrongfully retaliated against her when she filed a complaint of racial discrimination under FEHA. To establish this claim, Paula must prove:

  1. That Dan was a covered employer;
  2. That Paula was an employee of Dan;
  3. That Dan fired Paula and that Paula’s filing of a racial discrimination claim (a protected activity) was a substantial motivating reason for Dan’s decision to fire/retaliate against her; and
  4. That Paula was harmed and that Dan’s conduct was a substantial factor in causing Paula’s harm.

Note: Paula does not have to prove racial discrimination in order to be protected from retaliation. If she reasonably believed that Dan’s conduct was unlawful, she may prevail on a retaliation claim even if she does not present, or prevail on, a separate claim for racial discrimination. (Gov. Code, §12940, subd. (h).)

 Element 1: Covered Employer

An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)

Covered: Agents of Covered Employers

An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)


To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)

Covered: State, Cities, and Political or Civil Divisions

The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)

Covered: Labor Organizations

A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)

A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)

Covered: Individual Employees (Coworkers/Supervisors)

An employee of an entity subject to the FEHA is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).)

Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.

Not Covered: Nonprofit Religious Associations and Corporations

Nonprofit religious associations and corporations are not covered employers. (Gov. Code, § 12926, subd. (d)(1).)

Element 2: Protected Employee

Protected: Employees

An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)

Protected: Temporary Workers

Temporary workers are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)

Protected: Job Applicants

California law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)

Protected: Unpaid Interns

Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)

Not Protected: Volunteers

Volunteers are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)

Not Protected: Family Members

Person employed by their parents, spouse, or child are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)

Not Protected: Independent Contractors

Independent contractors are not protected under FEHA because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)


Element 3: Adverse Employment Action

“Adverse employment action” is a shorthand expression for the kind, nature, or degree of action against an employee that is enough to state a claim. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) Generally, the discrimination must adversely and materially affect the terms, conditions, or privileges of plaintiff’s employment. (Gov. Code, § 12940, subd. (a).)

An adverse employment action is interpreted liberally by the court under a case-by-case analysis, and it must be substantial. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1053-1043.) Additionally. an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Ibid.)

Protected Activity

A protected activity may include: making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under the statutes, or opposing acts made unlawful by FEHA. (Gov. Code, §12940, subd. (h).) For instance, it would be unlawful for an employer to terminate a worker who threatened to file a charge of employment discrimination against the employer, because to do so would constitute unlawful retaliation. (Iwekaogwu v. City of Los Angeles (1999) 75 CA4th 803, 815.)

More Examples of Prohibited Retaliation for Protected Activities

An employer may not terminate an employee because he or she attempted to stop one subordinate from sexually harassing another subordinate. (Flait v. North American Watch Co. (1992) 3 Cal. App. 4th 467, 472.)


An employer may not fire an employee who refuses to “Americanize” a predominately foreign workforce. (Blom v. N.G.K. Spark Plugs (USA), Inc. (1992) 3 Cal. App. 4th 382.)


An employer may not retaliate against a former employee who filed a complaint of discrimination by providing a negative reference to a prospective employer. (Hashimoto v. Dalton (9th Cir. 1997) 118 F.3d 671.)


An employer may not retaliate against an employee who refuses to write up a poor performance evaluation on an employee who is the victim of unlawful discrimination. (Lane v. Hughes Aircraft Co. (1997) 56 Cal. App. 4th 1038; Casenas v. Fujisawa USA, Inc. (1997) 58 Cal. App. 4th 101.)

Element 4: Retaliatory Intent

“Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made by decision makers displaying a retaliatory motive.’ Circumstantial evidence typically relates to such factors as the plaintiff’s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.)

“The retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ ‘The causal link may be established by an inference derived from circumstantial evidence, “such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615.)

FILING A RETALIATION CLAIM

Must Exhaust Administrative Remedies

Before filing a statutory retaliation claim, the employee must exhaust available administrative remedies by filing a charge of retaliation with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, § 12960.)

The employee must file an administrative charge of retaliation within one year of the date of the retaliatory acts. Failure to exhaust administrative remedies deprives a court of jurisdiction over a subsequent complaint of retaliation. (Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121-22.)

If the employee has already filed an administrative charge and later claims that the employer retaliated in response, the employee must amend the administrative charge or file a new one. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal. App. 4th 1607; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724. 35 Cal. Rptr. 2d 181, 183 (1994).

A second charge with the DFEH alleging retaliation because the employee had complained of discrimination is sufficient to support a claim for retaliation in court, even if the charge fails to specify that the employer engaged in retaliation against the plaintiff for filing the lawsuit. Soldinger v. Northwest Airlines, 51 Cal. App. 4th 345, 382.)

Statute of Limitations

The employee must file a civil lawsuit within one year from the date that the DFEH issues a “right-to-sue” notice to the employee. (Gov. Code, §12965, subd. (b).)

Right to Sue After One Year of Filing With DFEH

An employee’s right to sue arises by operation of law when the Department of Fair Employment and Housing fails to resolve the matter within one year from the time the employee first filed an administrative complaint for discrimination. The employee’s failure to obtain a second right to sue letter does not preclude a finding that the employee exhausted all required administrative remedies. (Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637.)

Remedies

 

Punitive Damages

Where an action is pleaded under the Fair Employment and Housing Act for retaliation, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)

Attorneys’ Fees and Costs

The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)

Emotional Distress Damages

(Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 410 Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976; see also Doyle v. Superior Court, (1996) 50 Cal. App. 4th 1878, 1887.)

Prejudgment Interest

Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)

Lost Compensation

Back Pay

Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)

Front Pay

Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)

AFFIRMATIVE DEFENSES

 Lack of Knowledge

In response to plaintiff’s first amended complaint, defendants raised the affirmative defense that they had no knowledge that plaintiff was subject to retaliation as alleged in his complaint; the court sustained the demurrer in part with leave to amend. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110, 115-16)

Appropriate Remedial Action

In response to plaintiff’s first amended complaint, defendants raised the affirmative defense that all reasonable steps to prevent an alleged retaliation were taken once defendants were made aware of plaintiff’s complaints; the court sustained the demurrer in part with leave to amend. (Wellpoint Health Networks v. Superior Court (1997) 59 Cal. App. 4th 110, 115-16)