Overview of Retaliation Claims Under the FEHA and Title VII

Elements of a Prima Facie Case

To state a prima facie case of retaliation under both the FEHA and Title VII, a plaintiff mustallege the following elements:

(1) There was an employment relationship (or potential employment relationship) between a protected employee or applicant and the employer;

(2) The employee was engaged in a legally protected activity;

(3) The employer subjected the employee to an adverse employment action;

(4) A causal link exists between the protected activity and the employer's adverse employment action;

(5) The employee exhausted his or her administrative remedies before commencing suit.

Burden of Proof

In analyzing retaliation claims under the FEHA and Title VII, courts apply a burden-shifting analysis:

Step #1: Employee sets forth facts to show each of the five elements of the prima facie case;

Step #2: Burden shifts to the employer to articulate a lawful reason for the adverse action taken;

Step #3: Employer states a lawful justification for its employment action;

Step #4: Burden shifts back to the employee to prove that the employer's stated reason for the action is a “pretext” for the unlawful retaliation. Flait v. North American Watch Corp., 3 Cal. App. 4th 467 (1992); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).

Taking a Closer Look at the Elements of Retaliation Claims

Element #1: An Employment Relationship

Under the FEHA and Title VII, job applicants and current, former, and temporary employees are protected against unlawful retaliation. Cal. Gov. Code § 12940(h); Cal. Code Regs. §7286.5(b); 42 U.S.C. §2000e-3(a).Supervisors may not be held personally liable for retaliation under the FEHA and Title VII, unless the retaliation takes the form of harassment. Jones v. Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158, 1173 (2008).But supervisors may be held personally liable under the ADA. The anti-retaliation provision of the Americans with Disabilities Act states “[n]o person shall retaliate against employees engaging in protected activities.” 42 U.S.C. §12203(a). This difference in language has been held to justify imposing personal liability for retaliation under the ADA against supervisors and coworkers. See Ostrach v. Regents of Univ. of Calif., 957 F. Supp. 196, 200-201 (E.D. Cal. 1997).

Element #2: Legally Protected Activity

To be considered lawfully protected under Title VII and the FEHA, the employee's activity must involve:

  • Opposing harassment or other discrimination believed to be unlawful under Title VII or the FEHA (known as the “Opposition Clause”); or
  • Filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII or the FEHA (known as the “Participation Clause”).

Examples of activity considered lawfully protected include:

  • Making a verbal or written complaint to a supervisor or to Human Resources;
  • Filing a claim or report with a state or federal agency, such as Cal-OSHA, the ABC, the DFEH, or the EEOC;
  • Threatening to report an alleged violation to a state or federal agency; or
  • Refusing to participate in unlawful conduct.

There are other anti-retaliation laws that expand the scope of what constitutes a legally protected activity beyond the confines of Title VII and the FEHA. Some examples of other conduct that is considered legally protected include:

  • Disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of noncompliance with a state or federal rule or regulation. Cal. Labor Code § 1102.5 (California's “whistleblowing” law).
    • When an employee is terminated or constructively discharged after complaining of purported illegal activity internally, as opposed to a government or law enforcement agency, the employee will likely rely on Section 1102.5 to bring a claim of wrongful termination in violation of public policy.
  • Testifying in an official proceeding regarding employee rights. Cal. Labor Code. § 98.6.Testifying pursuant to a subpoena. Cal. Labor Code § 230.
  • Exercising a legal right, such as taking a protected leave of absence.
  • Participating in lawful off-duty conduct. Cal. Labor Code §§ 96(k), 98.6.
    • The law in this area is somewhat unclear, so a conservative recommendation would be to avoid disciplinary action for off-duty conduct unless there is a direct impact on job performance or nexus to the workplace.

Basic principles to keep in mind regarding lawfully protected activities: A Broad Scope Of Conduct Has Been Considered Legally Protected.

A Retaliation Claim May Be Viable Even When The Underlying Complaint Is Meritless.

Complaints must be made in good faith with a reasonable belief that the conduct was unlawful. However, such complaints can form the basis of a retaliation claim even if the treatment complained of is not a legal violation. The employee need not identify the law he or she believes would be broken. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1043 (2005); Clark County School. Dist. v. Breeden, 532 U.S. 268, 270 (2001).

An employee does not need to prove that the underlying complaint of unlawful activity (such as harassment) was valid in order to win a retaliation claim. Even if the underlying complaint has no merit, juries have thrown out harassment claims and still found that the employee was unlawfully retaliated against for making the complaint and awarded significant damages based on the unlawful retaliation.

Internal Complaints Can Form The Basis Of A Retaliation Claim.

Complaints About The Treatment Of Others Can Be Protected Activity.

Element #3: Adverse Employment Action: Materiality vs. Deterrence

California and federal law diverge in their assessment of what constitutes an adverse employment action. Under California law, the case of Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1043 (2005) (discussed above with respect to legally protected activities), solidified the standard in California courts that an adverse action must materially affect the terms and conditions of employment.

However, in resolving a split between the federal circuit courts, the U.S. Supreme Court issued its opinion in Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006), in which it arguably expanded the definition of adverse action to include any action that might discourage a reasonable employee from engaging in a protected activity, even if the action does not directly affect the workplace.

California Standard: Materiality.

Under California law, the employment action must materially affect the terms and conditions of employment to be considered sufficiently adverse for purposes of making a retaliation claim. See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1043 (2005). In Yanowitz, the Court decided that the following acts, when considered collectively, amounted to sufficient “adverse employment actions” for purposes of defeating a motion for summary judgment:

  • Unwarranted negative performance evaluations;
  • unwarranted criticism in the presence of other employees;
  • refusing to allow the plaintiff to respond to the unwarranted criticism;
  • refusing the plaintiff's request to provide necessary resources and assistance;
  • solicitation of negative feedback from the plaintiff's staff.

The determination of whether an adverse employment action occurred will be made by looking at the totality of the circumstances. Neither economic harm nor psychological injury are required to prove materiality. Actions that detract from an employee's job performance, discourage an employee from remaining on the job, or would keep an employee from advancing his or her career may be evidence of materiality. Relatively trivial adverse actions or conduct that, from an objective perspective, are likely to do no more than anger or upset an employee cannot be properly viewed as materially affecting the terms, conditions, or privileges of employment and, therefore, are not actionable.

Los Angeles Labor Law Practice Areas

    Employment Discrimination Law

    Disability Discrimination Law

    Pregnancy Disability Law



    About the Author

    Jacob I. Kiani

    Jacob I. Kiani is an experienced and highly-skilled Los Angeles Labor & Employment Attorney. The Law Office of Jacob I. Kiani is a Labor & Employment Law Firm located in Los Angeles, California. The firm assists clients throughout Los Angeles, Hollywood, West Hollywood, Downtown Los Angeles, Beverly Hills, West Los Angeles, Orange County, and the San Fernando Valley with legal matters related to Labor & Employment Law, Wage and Hour Law, Unpaid Wages Law, Overtime Law, Meal Period and Rest Break Law, Business Law & Litigation, Technology Law, Human Resources Law, Severance Negotiations Law, and Unbundled Legal Services.

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