Retaliation

Retaliation Litigation

Retaliation cases involve allegations that one or more adverse employment actions were taken in response to an employees’ refusal to violate a statute, performance of a statutory obligation/right, or report of the violation of a statute. Retaliation laws protect employees who either refuse to break the law or are “whistleblowers”. Rushovich Mehtani LLP handles a large number of retaliation cases.

One of the main anti-retaliation laws in California is codified in Section 12940(h) of the California Fair Employment and Housing Act (FEHA). That section reads as follows:

12940(h). It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (h) For any employer, labor organization, employment agency, 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.

If you are an employee and you can demonstrate by a preponderance of the evidence (the legal standard required) that (a) you engaged in “protected activity” by opposing any practices that are prohibited by the FEHA, or by filing a complaint, testifying or assisting in any FEHA related lawsuit or claim, (b) you suffered an “adverse employment action” that would likely impair a reasonable employee’s performance or prospects of advancement, and (c) there is a causal link between the “protected activity” and the “adverse employment action”, you likely have a claim for retaliation under the FEHA. If you are able to establish the previously listed elements for retaliation, your employer would then have the burden of offering a legitimate, non-retaliatory reason for their actions.

There are also several federal laws that protect employees from retaliation in the workplace. One is Title VII of the Civil Rights Act of 1964 (as amended) found in volume 42 of the United States Code, in Section 2000e-3. Section 2000e-3 reads as follows:

2000e-3. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Title VII is similar to the FEHA, but there are some material differences. For one, the FEHA contains broader language that allows any "person", not just employees, to bring suit for retaliation. Title VII however limits retaliation suits to "employees and applicants for employment".

Other federal laws that protect employees from retaliation include, but may not be limited to: The Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, the Occupational Safety and Health Act, and the Fair Labor Standards Act.

Note that employees may not be held personally liable for making personnel decisions. Accordingly, claims of retaliation may only be brought against employers, not against individuals.