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Retaliation

Both federal and state law protect employees and applicants from employer retaliation for engaging in activity that is protected by anti-discrimination laws. You cannot retaliate against employees for participating in activities to further the enforcement of employment discrimination laws. The retaliation prohibition is quite broad and includes retaliation against a person who objected to a practice that is legal but that the person reasonably believed to be illegal. Protection from retaliation is not limited to applicants and employees; it covers all individuals, including former employees.​ There are also retaliation protections for whistleblowers.​​​

California Law Defines Retaliation Protections: California law defines “retaliation” as any adverse employment action against an individual who opposed FEHA-prohibited practices or who filed a complaint, testified, assisted or participated in an investigation or proceeding conducted by the Department of Fair Employment and Housing (DFEH). These protected activities include:

• Seeking advice from the DFEH, whether a complaint is filed or ultimately sustained
  
• Assisting or advising any person seeking advice from the DFEH, whether a complaint is filed or ultimately sustained
  
• Opposing employment practices that an individual reasonably believes to exist and believes to violate FEHA
  
• Participating in an activity that the employer perceives as opposition to discrimination, whether intended by the individual expressing the opposition
  
• Contacting, communicating with or participating in a DFEH proceeding due to a good-faith belief that FEHA was violated
  
• Contacting, communicating with or participating in local human rights or civil rights agency proceedings about employment discrimination on a protected basis
  
• Involvement as a potential witness, which an employer or another covered entity perceives as participating in a DFEH activity
  

However, an employer is protected when it enforces reasonable disciplinary policies and practices or prevents acts that are either disruptive or otherwise detrimental to legitimate business interests.

U.S. Supreme Court Defines Retaliation Protections: In Burlington Northern & Santa Fe Railway Co. v. White, the U.S. Supreme Court ruled that any employer action that would cause a reasonable employee to refrain from making or supporting a discrimination charge may support a retaliation claim under Title VII. As such, the anti-retaliation provision of Title VII provides broader protection than the anti-discrimination provisions. The anti-discrimination provisions require an applicant or employee to prove that he/she suffered an adverse employer action that affects employment or alters the conditions of the workplace as a result of engaging in an activity that is protected by anti-discrimination laws.

The Supreme Court’s ruling makes it clear that juries are not required to find that retaliatory actions relate only to the terms or conditions of employment. According to the U.S. Supreme Court, common sense suggests that an employee would be discouraged from bringing discrimination charges if the employer required that he/she spend more time performing more arduous duties and ordered the employee on an indefinite suspension without pay, even though the suspension was rescinded and lost pay restored. A reasonable employee who faces the choice between retaining his/her job and paycheck and filing a discrimination complaint might well choose the former. The anti-retaliation provision in Title VII is meant to protect employees from being in that position.

Federal Laws Define Retaliation Protections: Federal laws contain prohibitions on retaliation. Title VII, the ADEA, the ADA and the Equal Pay Act (EPA) prohibit retaliation by an employer, employment agency or labor organization because an individual engaged in a protected activity. This protected activity consists of:

• Opposing a practice that is unlawful under one of the employment discrimination statutes
  
• Filing a charge or testifying, assisting or participating in any manner in an investigation, proceeding or hearing under an anti-discrimination statute
  

People who claim retaliation under Title VII, the ADA, the ADEA or the EPA need not claim discrimination based on race, religion, sex, national origin, age or disability, nor must they be a qualified individual with a disability or in the age group protected by the ADEA. Retaliation is unlawful even if it occurs after the employment relationship ends. An applicant, employee or former employee can bring an ADA retaliation claim against an individual supervisor and an employer.

Employees Protected From Retaliation: In another U.S. Supreme Court case, the Court found that Title VII covers third-party claims of retaliation brought by persons who did not themselves engage in any protected activity. The case arose after an employee was fired shortly after his fiancée filed a sex discrimination claim against the company where they both worked. The Court unanimously held that if the alleged facts were true, then firing the male employee was unlawful retaliation even though his fiancée complained of unlawful conduct. 

“But For” Test: In a case decided by the U.S. Supreme Court in June 2013, the Court ruled that in retaliation lawsuits under Title VII, complaining parties must prove that the employers would not have taken action against them "but-for" the intention to retaliate — a stronger test than needing to show that retaliation was one of many motivating factors.

In the case, Dr. Naiel Nassar left his faculty job at University of Texas Southwestern Medical Center after complaining of harassment. He had been offered a vacant staff physician at a hospital affiliated with the university, but that offer was withdrawn. Nassar claimed that the withdrawal of the job offer was in retaliation for his harassment complaint. He sued, won and was awarded more than $3 million in damages.

The university claimed that the judge erred in telling the jury that it only needed to find that retaliation was a motivating factor in the supervisor’s actions, otherwise known as a mixed-motive. The university argued that for there to be employer liability, the jury had to find that the adverse actions would not have happened “but for” the supervisors’ desire to retaliate against Nassar.

The Court agreed with the university — ruling that to prevail in Title VII retaliation claims, an employee “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”