Workplace Retaliation Under California Law

California law prohibits an employer from retaliating against any employee who engages in protected activity under the Fair Employment and Housing Act ("FEHA") which is contained in the California's Government Code at section 12900 and those that follow. Government Code section 12940, subdivision (h), protects from retaliation employees who resist or object to discrimination or harassment. That provision makes it unlawful “[f]or any employer … 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.”

To establish a prima facie case of retaliation, a plaintiff must show that (1) he or she engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s adverse action were causally connected. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

An employee’s opposition to discrimination or harassment need not be a formal charge to qualify as a protected activity, but must be sufficient to “put an employer on notice as to what conduct it should investigate .…” (Id. at p. 1047.) The employee must reasonably believe the activity he or she opposes is unlawful, but it need not actually be later found unlawful by a court. (Id. at pp. 1043, 1047.) In the context of harassment, protected activity under FEHA includes but is not limited to making a complaint or opposing any activity which the employee reasonably believes to be unlawful harassment or other conduct forbidden by FEHA.

As stated in pertinent part by the California Supreme Court in Yanowitz

Section 12940(h) makes it an unlawful employment practice for an employer “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.”

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For the reasons set forth below, we conclude that an employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under the FEHA and that an employer may not retaliate against an employee on the basis of such conduct when the employer, in light of all the circumstances, knows that the employee believes the order to be discriminatory, even when the employee does not explicitly state to her supervisor or employer that she believes the order to be discriminatory. Second, we conclude that the proper standard for defining an adverse employment action is the “materiality” test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment (see Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1454-1457), rather than the arguably broader “deterrence” test adopted by the Court of Appeal in the present case.

The Yanowitz court therefore made clear that while the employee need only have "reasonable belief" that employer or other employee's are engaging in unlawful activity and need not expressly state the wrongful conduct is illegal in order to qualify for FEHA's protections, the retaliation by the employer must be "material," meaning it must materially affect the terms and conditions of employment.

Most recently, in the case of Burlington Northern v. White, the United States Supreme Court weighed in on what constitutes retaliation in the workplace under federal Title VII.