FEHA retaliation occurs when an employer takes negative action against an employee for exercising their rights under the law. Imagine standing up for your rights at work, perhaps by reporting workplace harassment or requesting a reasonable accommodation. Then, suddenly, you're demoted or given unfavorable work assignments. This is the unfortunate reality of FEHA retaliation for some California employees.
In this guide, you will learn how to recognize FEHA retaliation, understand your legal protections, document incidents effectively, and take the necessary steps to seek justice and compensation for unlawful employer actions.
Table of Contents:
- What is Wrongful Termination/Retaliation under FEHA?
- What Actions are Protected Under FEHA?
- What Counts as "Adverse Action" in FEHA Retaliation Cases?
- Proving the Connection
- Steps to Take if You're a Victim of FEHA Retaliation
- What Kind of Damages Could I Recover?
- A Real-Life Example: Rafi Kourounian's Case
- Moving Forward
- Frequently Asked Questions
What is Wrongful Termination/Retaliation under FEHA?
Wrongful termination and retaliation under the Fair Employment and Housing Act (FEHA) occur when an employer fires, demotes, or otherwise takes adverse employment action against an employee because they engaged in protected activity or belong to a protected class. FEHA protects employees from termination based on discrimination related to race, gender, age, disability, sexual orientation, and other protected characteristics, as well as retaliation for filing complaints, participating in investigations, or opposing unlawful workplace practices. California's FEHA provides broader protections than federal employment laws and allows employees to seek significant remedies including reinstatement, back pay, and damages for emotional distress.
Key Elements under FEHA:
- Protected Activity - Filing a discrimination complaint, participating in an investigation, opposing unlawful employment practices, or requesting reasonable accommodations for disabilities
- Protected Classes - Termination based on race, color, national origin, ancestry, religion, age, mental or physical disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, pregnancy, childbirth, breastfeeding, or sexual orientation
- Adverse Employment Action - Firing, demotion, suspension, reduction in pay or hours, negative performance evaluations, or creating a hostile work environment
- Causal Connection - The employer's adverse action must be motivated by the employee's protected activity or membership in a protected class, demonstrated through timing, direct evidence, or circumstantial evidence
- Damages Available - Successful plaintiffs may recover lost wages, benefits, reinstatement, promotion, attorney's fees, and damages for emotional distress and mental anguish
- Statute of Limitations - As of January 1, 2020, under California Government Code § 12960, employees generally have three years from the date of the alleged unlawful practice to file a complaint with the California Civil Rights Department (formerly DFEH). The time limit may be extended under the continuing violation doctrine or delayed discovery rule in certain cases, and employees must file an administrative complaint and receive a Right-to-Sue notice from the Civil Rights Department before filing a civil lawsuit
What Actions are Protected Under FEHA?
The FEHA serves as a safeguard for all workers in California. It prevents employers from retaliating against employees who exercise their legal rights.
Here are some of the activities protected under FEHA:
- Opposing any practice forbidden under FEHA, including workplace harassment and employment discrimination. This includes an employer's failure to grant required pregnancy/family leave.
- Filing a complaint about harassment or discrimination.
- Testifying or assisting in any proceeding under FEHA.
- Requesting workplace accommodations for religious beliefs or disabilities.
What Exactly Does "Opposing" Mean?
"Opposing" may sound broad, but it encompasses various actions. For example, you are protected if you bring up illegal activity that you observe at work.
It's crucial when workers identify pay discrepancies. California's new SB 497 benefits the workforce as employers must now provide evidence for any disciplinary action against those who speak out. This impacts unpaid wage claims and other labor law disputes.
Workers are encouraged to speak up, knowing their rights are protected. This could involve:
- Seeking advice from a state agency.
- Assisting someone else in obtaining advice.
- Opposing something you believe, in good faith, is a violation of the FEHA.
What if I am Wrong About the Harassment?
If your employer terminated you for opposing potentially unlawful conduct, you might still win a retaliation case. This is true as long as your opposition was based on a reasonable and good faith belief that the conduct was unlawful.
As long as your opposition was based on a reasonable suspicion of wrongdoing, you could be entitled to legal protection.
What Counts as "Adverse Action" in FEHA Retaliation Cases?
FEHA retaliation isn't always as obvious as job termination. It can manifest in various forms of negative actions against you, the employee.
Consider "adverse action." It includes actions that, individually, might not seem significant, but collectively harm your employment. Some examples to watch out for include:
- Being unfairly demoted.
- Receiving unjustified negative performance reviews.
- Experiencing an unwarranted pay cut.
- Facing changes to unfavorable work assignments or being given the "silent treatment."
Who Can Commit an Adverse Action?
While it's natural to assume that retaliation typically comes from your manager, FEHA extends beyond that. You can sometimes hold your employer accountable for a coworker's retaliatory actions.
This is applicable if management is aware of the coworker's harassing behavior but permits, encourages, or fails to correct it.
Proving the Connection
One of the more challenging aspects of retaliation lawsuits is establishing a causal link between your protected activity and the adverse actions taken against you. Showing your activity was a contributing factor is essential.
Proving a "substantial motivating reason" is key. This means demonstrating that the adverse actions wouldn't have occurred if you hadn't exercised your rights under FEHA.
What if They Would Have Fired Me Anyway?
Your employer might try to claim they discovered other reasons, after the fact, to justify your termination. This defense, where an employer tries to limit liability by introducing evidence of an employee's wrongdoing that would have resulted in termination, is called an "after-acquired evidence".
Serious offenses, like lying on a resume, are usually acceptable for an after-acquired evidence defense. However, minor infractions that appear insignificant often fail to meet this standard.
Steps to Take if You're a Victim of FEHA Retaliation
First, maintaining detailed records of events is essential. These records can serve as crucial evidence if you decide to file a complaint.
The following steps outline the actions you can take:
- Report it internally: Inform your supervisor or Human Resources department about the situation.
- File a complaint: You can file a complaint with the California Civil Rights Department (CRD).
- Consider legal advice: Following these steps, you might contemplate pursuing a FEHA wrongful termination lawsuit against your employer.
The Importance of Reporting Internally
Internal reporting provides your employer with an opportunity to address the issue. Discussing the situation with HR could potentially resolve the matter before you file formal charges.
This might lead to a reversal of any adverse actions and improve your working conditions.
Filing a Complaint with the CRD
If internal resolution is not possible, filing a complaint with the CRD might be necessary. You will need a "right to sue" notice from the CRD.
Once you have this notice, you can proceed with a lawsuit. Remember, strict deadlines, or statutes of limitations, apply to filing a complaint with the CRD.
A FEHA complaint must be filed promptly. Under California law, you generally have three years from the date of the retaliatory act to file a complaint.
What Kind of Damages Could I Recover?
If you've experienced unlawful practices by your employer, you may be entitled to various types of financial compensation. These might include monetary awards to compensate for lost wages.
In these circumstances, it could be helpful to consult with an unpaid wages attorney.
Lost Wages and Benefits
If you've been terminated, you'll likely be out of work. Seeking compensation for your lost earnings from the time of termination up to the trial can strengthen your case.
Successfully obtaining lost wages relies on proving your losses with strong evidence and reasonable certainty.
Emotional Distress Damages
Experiencing discrimination or losing your job due to exercising your legal rights can take an emotional toll. These challenges often impact your physical or emotional well-being, and even personal relationships.
Effectively conveying the impact of these events is crucial in proving the value of your emotional distress.
How a Lawyer Could Help
Seeking legal counsel from a Los Angeles Wrongful Termination lawyer about your situation can be extremely beneficial. Discussing critical aspects, such as gathering compelling evidence or pursuing available remedies, can provide valuable support and direction.
Common Types of FEHA Retaliation:
| Type of Retaliation | Description |
|---|---|
| Wrongful Termination | Being fired for engaging in a protected activity. |
| Demotion | Being moved to a lower position or having responsibilities reduced. |
| Pay Reduction | Having wages or salary reduced without justification. |
| Constructive Termination | When the workplace environment becomes so hostile that you're forced to resign. |
| Harassment | Experiencing ongoing mistreatment in the workplace because of protected activities. |
A Real-Life Example: Rafi Kourounian's Case
A jury awarded Rafi Kourounian $425,000. Kourounian faced adverse employment action after filing complaints within their office.
This serves as a clear example of unlawful FEHA retaliation against an individual who advocated for fairness. It demonstrates that such reports, although personal, reflect broader civil rights struggles.
This case underscores the protections and recourse available to employees who confront issues arising from reporting wrongdoing.
Moving Forward
Standing up for your rights or taking a medical leave from work should not jeopardize your job security. This encompasses a wide range of situations, from pregnancy discrimination to sexual harassment. Understanding the protections offered by FEHA is crucial if you believe you have been retaliated against and/or wrongfully terminated. It also highlights the importance of being aware of potential consequences, both before and during the act of speaking out in California workplaces. Being informed and prepared helps protect your employment and civil rights.
Frequently Asked Questions
What are the three elements of retaliation?
To establish a retaliation claim under employment law (such as Title VII or FEHA), the evidence must demonstrate: (1) the person engaged in legally protected activity of which the employer was aware; (2) the employer took a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action
What is retaliation under the FEHA?
Retaliation under the Fair Employment and Housing Act occurs when an employer punishes an employee for exercising their legal rights, such as reporting discrimination or harassment, participating in workplace investigations, or requesting reasonable accommodations. This punishment can take many forms including termination, demotion, reduced hours, or creating a hostile work environment in response to the employee's protected activities.
How hard is it to win a retaliation lawsuit?
Retaliation lawsuits present unique challenges and opportunities for employees. The strength of your case depends on a number of factors that could include timing between your protected activity and the adverse action, documentation of the employer's behavior, and the quality of legal representation.
