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EEO - Retaliation: California

EEO - Retaliation requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Brian S. Inamine, LeClairRyan

Summary

Retaliation Under the California Fair Employment and Housing Act

The California Fair Employment and Housing Act (FEHA) prohibits retaliation against any person because that person has opposed any practices forbidden under FEHA or because that person has filed a complaint, testified or assisted in any proceeding held pursuant to FEHA. +Cal. Gov. Code § 12940, +2 CCR 11021 .

FEHA considers the following to be protected classes in California:

  • Race;
  • Religious creed (including religious dress and grooming);
  • Color;
  • National origin and ancestry (including language- use restrictions and protected use of immigrant driver's license);
  • Physical or mental disability (including HIV and AIDS);
  • Medical condition;
  • Genetic information;
  • Marital status;
  • Sex/gender (including breastfeeding and related conditions);
  • Gender identity/gender expression;
  • Pregnancy (childbirth and related medical conditions including breastfeeding/lactation);
  • Age (40 and over);
  • Sexual orientation; and
  • Military and/or veteran status (a member or veteran of the US Armed Forces, the US Armed Forces Reserve, the US National Guard and the California National Guard).

See +Cal. Gov. Code § 12940(a), +2 CCR 11006.

Los Angeles and San Francisco have local requirements related to retaliation. See Local Requirements.

Employees

Under the FEHA, the term employee does not include independent contractors, but it does include temporary workers who are both employees of the employer as well as the temporary service agency. It also includes employees on paid or unpaid leave and individuals providing services pursuant to a contract. California extends protection from harassment and discrimination to unpaid interns and volunteers. +2 CCR 11008.

Employers

The FEHA applies to employers regularly employing five or more employees for each working day in any twenty (20) consecutive calendar weeks in a current calendar year or preceding calendar year regardless of whether the employee's worksite is located within or outside of California. However, an employer with even one employee is prohibited from engaging in harassment on the basis of any classification protected by the FEHA (e.g., medical condition, disability). While employees located outside of California are counted in terms of determining FEHA coverage, such employees are not covered by protections of California law if the wrongful conduct did not occur in California and it was not ratified by California decision makers or participants. For counting purposes, individuals need not be employees or full time employees. Employees on paid or unpaid leave (including California Family Rights Act Leave, leave of absence or disciplinary suspension or other leave) are counted. +Cal. Gov. Code § 12926, +2 CCR 11008.

Establishing a Retaliation Claim

To prove a claim of retaliation, an individual must show by a preponderance of the evidence that:

  1. He or she engaged in a protected activity;
  2. The employer subjected the employee to an adverse employment action; and
  3. A causal link existed between the protected activity and the employer's action. See Yanowitz v. L'Oreal USA Inc., +36 Cal.4th 1928(2005), +2 CCR 11021.

The individual must show that his or her membership in a protected class was a substantial or motivating factor in the denial of an employment benefit and that the denial is not justified by a defense. It must be more than a remote or trivial factor, but it does not have to be the only cause of the denial. +2 CCR 11009.

Procedural Timelines

Generally an employee has one year from time of alleged retaliation to file a complaint with the Department of Fair Employment and Housing and a one-year time period to bring a civil action subsequent to the issuance of a right to sue notice. +Cal. Gov. Code § 12960; +Cal. Gov. Code § 12965.

Tolling of the FEHA Administrative Complaint

The one-year FEHA time limit to file a civil cause of action after the right to sue notice has been issued may be tolled if an employee also files a concurrent administrative claim with the federal Equal Employment Opportunity Commission (EEOC). If a concurrent EEOC claim is filed, an employee must file their FEHA cause of action at the later of the expiration of the federal statute of limitations to file a civil cause of action or the FEHA one-year time limit after the right to sue notice is issued.

Required Policies

Employers have an affirmative duty to take reasonable steps to prevent retaliation as well as discrimination and harassment in employment. There is no standalone private cause of action for this unless the claimant prevails on an underlying cause of action for retaliation, discrimination or harassment, but the DFEH may independently seek non-monetary preventative remedies for a violation regardless of whether or not the DFEH prevails on an underlying claim of discrimination, harassment, or retaliation. Under FEHA regulations, covered employers are required to develop and implement a compliant retaliation policy (as well as policies against discrimination and harassment). +2 CCR 11023.The policy must:

  • Be in writing and distributed to all employees with an acknowledgment that the employee has received and understands the policy;
  • List all categories protected by FEHA;
  • Clearly state that not only employees, but also independent contractors, interns and volunteers are protected by the policy;
  • Specify that supervisors, managers, co-workers and third parties (such as suppliers and customers) who come into contact with workers are prohibited from engaging in conduct prohibited by FEHA;
  • Create a complaint process including alternative avenues to bring complaints and indicate that an individual may complain about improper conduct either to their manager or through a neutral party including:
    • A designated company representative;
    • An HR manager;
    • An EEOC officer;
    • Another supervisor;
    • A complaint hotline;
    • Access to an ombudsperson; or
    • An appropriate state (DFEH) or federal (EEOC) government agency.
  • A description of the company's internal complaint process which provides for:
    • An employer's designation of confidentiality to the greatest extent possible (Note that an employer should be careful not to promise confidentiality);
    • A timely response;
    • Impartial and timely investigation by qualified personnel;
    • Documentation and tracking of complaints for reasonable progress;
    • Appropriate options for remedial actions and resolutions;
    • Timely closure of investigations; and
    • Language indicating that the employer will conduct "a fair , timely and thorough investigation that provides all parties appropriate due process and reasonable conclusions based on the evidence collected and indicate that if misconduct is found appropriate remedial actions will be taken"
  • Instruct supervisors to report any complaints to a designated company representative to attempt to resolve internally; and
  • Emphasize that employees who bring complaints or participate in investigations will not be retaliated against.

Distribution of Policy

The retaliation policy should be distributed to each of the employees:

  • In a written document with an acknowledgement to sign and return;
  • Via email with an acknowledgement to return;
  • By posting on an intranet site with a tracking system to make sure that employees read and acknowledge it;
  • By presenting to and discussing the policy with newly hired employees during the orientation and onboarding process; or
  • By providing the policy any other way to ensure that employees receive and understand the policies. +2 CCR 11023.

Language

If an employer's workforce contains 10 percent or more of any persons who speak a different language other than English as their spoken language, the policy must be translated into every language that is spoke by at least 10 percent of the workforce.+2 CCR 11023.

Required Postings

All California employers must conspicuously post an antidiscrimination and antiharassment notice. This contains an antiretaliation provision.

Required Training

In California, employers with at least 50 employees are required to provide sexual harassment prevention training to all supervisors located in California within six months of hire or promotion and every two years thereafter. This includes employees located both withing California and out of state as well as temporary employees and independent contractors. The training covers unlawful harassment, discrimination, and retaliation under both California and federal law. +Cal Gov Code § 12950.1, +2 CCR 11023, +2 CCR 11024, Training and Development: California, EEO - Discrimination: California, EEO - Harassment: California.

Remedies

In a civil cause of action, an employee can recover the following:

  • Back pay;
  • Potential front pay;
  • Reinstatement;
  • Costs and fees; and
  • Compensatory and punitive damages with no statutory cap. See Commodore Hone Systems, Inc. v. Superior Court, +32 Cal.3d 211 (1982); +Cal. Civ. Code § 3294.

Effective January 1, 2019, under the FEHA, a prevailing party in a civil action may be awarded reasonable attorney's fees and costs, including expert witness fees.

A prevailing defendant will only be awarded fees and costs the court finds the action was frivolous, unreasonable, or totally without foundation when brought, or that the plaintiff continued to litigate after the action clearly became frivolous, unreasonable, or groundless.

+2017 Bill Text CA S.B. 1300, adding Cal Gov Code § 12965.

Discrimination Based on Military Duty

It is illegal in California to fire an employee because he or she is called to active duty with any branch of the armed services or National Guard or Naval Militia. +Cal Mil & Vet Code § 394.

Prohibition on Confidentiality Provisions in Settlement Agreements

With respect to settlement agreements, under the Stand Together Against Non-Disclosures (STAND) Act, any provision that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:

  • An act of sexual assault;
  • An act of sexual harassment, as defined in +Cal Civ Code § 51.9; or
  • An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex, as described in +Cal Gov Code § 12940.

+2017 Bill Text CA S.B. 820, adding Cal Civ Pro Code § 1001; see Terms of Employment: California.

Anti-Retaliation Provisions Under Military Leave Statute

Employers may not retaliate against employees for taking leave under the state's law allowing qualified employees unpaid leave if the employee's spouse or domestic partner is a qualified member of the armed forces or National Guard on leave from deployment. +Cal Mil & Vet Code § 395.10.

Liability and Remedies

A person in violation of this section is guilty of a misdemeanor. Additionally, actual damages, fees and costs and punitive damages are available to an alleged claimant.

Retaliation Against Crime Victims

Employers may not terminate or in any manner discriminate against an employee who is a victim of a crime for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.

Employers must also allow an employee who is a victim of domestic violence or sexual assault to take time off from work to obtain or attempt to obtain relief, such as a temporary restraining order or restraining order, to help ensure the health, safety or welfare of the victim or his or her child. Employers may not discriminate or retaliate against employees who take time off as allowed by the law.

Effective January 1, 2014, legal protections for victims of domestic violence or sexual assault expanded to cover victims of stalking (A.B. 400). The law also requires employers to provide reasonable accommodations to victims of domestic violence, sexual assault or stalking. Finally, the law prohibits employers from discriminating or retaliating against an employee:

  • Because of the employee's status as a victim of domestic violence, sexual assault or stalking, if the victim provides notice of the status or the employer has actual knowledge of the status; or
  • Because the employee has requested or received a reasonable accommodation.

S.B. 288, which is similar to A.B. 400, prohibits an employer from discriminating or retaliating against an employee who is the victim of an offense for taking time off, at the employee's request, to appear in court. Offenses include:

  • Vehicular manslaughter while intoxicated;
  • Felony child abuse likely to produce great bodily harm or a death;
  • Assault resulting in the death of a child under eight years of age;
  • Felony domestic violence;
  • Felony physical abuse of an elder or dependent adult;
  • Felony stalking;
  • Solicitation for murder;
  • Hit-and-run causing death or injury;
  • Felony driving under the influence causing injury;
  • Sexual assault; and
  • Other serious felonies.

See Other Leaves: California.

California employers are prohibited from engaging in, or directing another person or entity to engage in, unfair immigration-related practices against any person for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under California's Labor Code or by any local ordinance applicable to employees. See +Cal Lab Code § 1019.

Exercising a right protected by California's Labor Code or local ordinance includes the following:

  • Filing a complaint or informing any person of an employer's or other party's alleged violation of the Labor Code or local ordinance, so long as the complaint or disclosure is made in good faith.
  • Seeking information regarding whether an employer or other party is in compliance with this code or local ordinance.
  • Informing a person of his or her potential rights and remedies under the California Labor Code or local ordinance, and assisting him or her in asserting those rights.

Unfair immigration-related practice is defined as any of the following practices performed for a retaliatory purpose:

  • Requesting more or different documents to verify an employee's identity and authorization to work in the US as required by 8 USC §1324a(b), or a refusal to honor documents given to establish identity and work authorization that on their face reasonably appear to be genuine.
  • Improperly using E-Verify to check the employment authorization status of a person.
  • Threatening to file or the filing of a false police report.
  • Threatening to contact or contacting immigration authorities.

However, unfair immigration-related practice does not include conduct done at the request of the federal government.

See Recruiting and Hiring > Immigration, Form I-9 and Work Visas: California.

A new California law related to unfair immigration practices, effective January 1, 2017, clarifies that it is unlawful for an employer to request more or different documents than required by federal law for employment verification; refuse to honor documents that appear to be genuine or refuse to honor documentation or work authorization based on the specific status of the authorization or attempt to reinvestigate or reverify an existing employee's work authorization using an unfair immigration related practice. An employer that violates this law is subject to a penalty imposed by the Labor Commissioner of up to $10,000 per violation as well as equitable relief. An individual who believes that their rights have been violated may file a complaint with the Division of Labor Standards Enforcement. +2015 Bill Text CA S.B. 1001.

Worker Protections Available Regardless of Immigration Status

Worker protections, rights and remedies available under state law, with the exception of any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in California. See +Cal Lab Code § 1171.5.

In fact in Salas v. Sierra Chemical Co., +2014 Cal. LEXIS 4506 (Cal. June 26, 2014) the California Supreme Court held that an employee could pursue a discrimination and retaliation claim against his employer under California's Fair Employment and Housing Act, even though he is an unauthorized alien who used false documents to secure employment. The Court reasoned that the worker protections in California's Senate Bill No. 1818 (Cal Lab Code § 1171.5) extend to unauthorized aliens who used false documents to obtain employment. As such, an unauthorized worker may be entitled to state remedies for unlawful discharge, including lost wages during the period of time before an employer discovers that an employee is ineligible to work.

California has enhanced whistleblower protections for immigrant workers that

  • Expand the definition of unfair immigration-related practice;
  • Permit an employee to pursue a civil claim seeking damages and penalties against an employer for its unfair immigration-related practice;
  • Prohibiting an employer from discharging or discriminating, retaliating or taking any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, Social Security Number or federal employment authorization document; and
  • Providing for a $10,000 penalty to be awarded for each violation to an employee who suffers an adverse employment action due to his or her protected conduct.

Imigration-related retaliation protections have been strengthened and the definition of unlawful employment practice has been expanded to prohibit an employer or any other person or entity from using the E-Verify system in a manner not required by federal law, regulations or an existing memorandum of understanding to check the employment authorization status of an existing employee or applicant. See +2015 Bill Text CA A.B. 622; Immigration, Form I-9 and Work Visas: California.

Retaliation for Requesting Accommodation

The FEHA requires an employer to provide reasonable accommodation of a person's disability as well as a person's religious beliefs and prohibits discrimination against a person because he or she opposed any practices forbidden under the FEHA or because the person has filed a complaint. FEHA prohibits an employer from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted. This amendment to the FEHA is the result of a 2013 case in the California Court of Appeals that held that an employee's request for an accommodation for his or her disability is not considered protected activity for purposes of a FEHA retaliation claim.

Retaliation Under Fair Pay Act

Under the California Fair Pay Act strengthens California's equal pay law and makes it easier for employees to bring wage discrimination claims as the burden on employer is increased. Employees are permitted to file complaints alleging a wage differential based on sex, race or ethnicity between workers doing substantially similar work (not just the exact same job), when based on skill, effort, and responsibility, and performed under similar working conditions at different work sites, not just at their own work site. Further, when faced with an unequal pay claim an employer is required to demonstrate that any wage differential is based on a factor other than sex, race or ethnicity such as seniority, merit or a system measuring earnings by quantity or quality of production. An employer may also demonstrate that the wage differential is based on a bona fide factor, but only if that factor is job-related and consistent with business necessity. This last defense shall not apply if the employee can show that an alternative business practice would serve the same business purpose without producing the wage differential. A prior salary earned by an employee shall not by itself justify any disparity in compensation under the defense that an employer relied on a bona fide factor to justify the pay differential. Additionally, employers are banned from prohibiting an employee from disclosing, discussing or inquiring about their own wages or the wages of another employee or discriminating or retaliating against them for engaging in such conduct. Employers are also prohibited from discriminating or retaliating against an employee for exercising or assisting others in exercising their rights under the equal pay law. An employee may bring a civil action for discrimination or retaliation to recover lost wages and benefits as well as interest and equitable relief without first filing an administrative claim. Further, an employer is required to preserve records of employee wages, job classifications, and other terms and conditions of employment for three years.

Local Requirements

Los Angeles Retaliation

In Los Angeles, city employers are prohibited from retaliating against an employee based on an HIV or AIDS diagnosis. Los Angeles Municipal Code, §§ 45.80 - 45-93.

San Francisco Lactation Accommodation Ordinance

San Francisco has enacted a lactation accommodation ordinance, expanding protections for breastfeeding employees.

Under the Lactation in the Workplace Ordinance, effective January 1, 2018, all private employers in San Francisco are required to:

  • Provide breastfeeding employees with a reasonable amount of break time and a location for expressing breastmilk unless doing so would create an undue hardship; and
  • Adopt policies establishing how employees may request an accommodation.

An employer is prohibited from discharging, discriminating, retaliating or taking any adverse action against an employee for exercising her rights under the law and/or requesting a lactation accommodation. If an employer takes an adverse employment action against an employee within 90 days of the employee engaging in protected conduct, to rebut the presumption, the employer must present clear and convincing evidence that the employer took the action solely for a reason other than retaliation.

San Francisco Retaliation

In addition to the protected categories in FEHA, the City of San Francisco prohibits retaliation based on height and weight, veteran status, political affiliation, parental status, Acquired Immune Deficiency Syndrome and place of birth.

Future Developments

There are no new developments to report at this time. Continue to check XpertHR for more information on this and other developments.

Additional Resources

Employee Management > EEO - Retaliation

EEO - Harassment: California

EEO - Discrimination: California

San Francisco Department of Human Resources

California Department of Fair Employment & Housing