05 Nov FEHA Protected Activity Retaliation
Retaliation for Fair Employment and Housing Act, or FEHA, protected activity is a common form of unlawful retaliation. The FEHA prohibits employment discrimination and harassment. But it also makes it unlawful to retaliate against employees for engaging in protected activity. There are two central parts to a FEHA retaliation claim: protected activity and retaliation.
FEHA protected activity that triggers retaliation provision
The FEHA prohibits retaliation. But it only prohibits certain kinds of retaliation. Specifically, it prohibits retaliation against employees for engaging in conduct that qualifies as protected activity. Under the FEHA, protected activity means opposing employment practices that the FEHA makes unlawful. All sorts of things can count as opposition. But, most commonly, it’s reporting or complaining to a manager or HR.
For example, the FEHA makes sexual harassment unlawful. Reporting to HR is a form of opposition. Accordingly, an employer cannot retaliate against an employee for reporting sexual harassment to HR. Doing so would violate the FEHA.
Conversely, the FEHA doesn’t make it unlawful for your boss to criticize your work. So suppose your boss criticizes your work. You think her criticism is unfair and you complain to HR. While that complaint to HR might be opposition, it’s still probably not protected activity. That’s because the conduct about which you’re complaining isn’t prohibited by the FEHA.
Of course, the law is not black and white. There is a fine line between conduct that is impolite and conduct that violates the FEHA. Fortunately, the underlying conduct need not actually violate the FEHA. Instead the employee just needs to show they had a good faith belief that it does. For example, if an employee complains about what they honestly think is unlawful harassment, then the FEHA protects that employee from retaliation. Of course, that honest belief typically has to be at least somewhat reasonable.
FEHA protected activity retaliation requires an adverse employment action
Technically under the law, retaliation refers to the overall act of retaliating against an employee for engaging in protected activity. The employer does the retaliating by taking what’s called an adverse employment action. Many people assume this means firing, but it’s actually much broader.
In simple terms, an adverse employment action is anything that negatively affects the conditions of your employment. In addition to termination, this can be things like, demotions, failure to promote, or transfer to a less desirable role. This is not an exhaustive list. In fact, there isn’t necessarily an exhaustive list. Whether something qualifies as an adverse employment action depends on the facts of the situation.
Causation is an element of retaliation
Critically, it is not enough to show merely protected activity and an adverse employment action. To establish a retaliation claim, an employee must show some causal connection between the protected activity and the adverse employment action. That is, they must show the adverse employment action was at least partly because of the protected activity.
Obviously, the best evidence is direct evidence. But in most cases, an employer won’t say they’re firing an employee because of their protected activity. More often, an employer will offer some legitimate reason for the adverse employment action and the employee will need to use circumstantial evidence to establish causation. For example, close temporal proximity between the protected activity and the adverse action is evidence of causation (though usually not enough evidence on it’s own).
There are non-FEHA retaliation laws that apply in California
It’s important to note that there are other types of unlawful retaliation. For example, California Labor Code section 1102.5 prohibits retaliation against qualifying employees. There are also federal laws, such as the Sarbanes-Oxley Act, that prohibit retaliation in certain circumstances.Consequently, if you have experienced retaliation that doesn’t fit within the FEHA retaliation discussed above, that doesn’t mean you don’t have a case. You should contact an employer lawyer to evaluate your case. They can determine what, if any, retaliation claims you may have.
If you an employer has retaliated against you, contact the Khadder Law Firm today for a free consultation.