What California Employees Need to Know About Workplace Retaliation
Many California workers experience negative retaliatory treatment in the workplace.
California has laws preventing retaliation against employees, but many are still demoted or fired anyway for participating in legal acts. You talk with a employment law attorney about your employer’s actions, and your attorney confirms that yes, it sounds like your employer is guilty of discrimination. You file a lawsuit for damages that were a result of the discrimination, your employer learns of the lawsuit, and you’re “let go” the next day. Your former employer gives a vague reason for your termination, but your lawyer gives it a name: retaliation.
Retaliation is a type of illegal discrimination. It occurs when an employer or employment agency takes adverse action against an employee for participating in a protected activity.
There are many labor laws that protect employees when engaging in certain activities. If an employer retaliates against an employee, the employee can file a wrongful termination lawsuit and recoup compensation for damages.
Retaliation is now the most common workplace dispute. In 2015, nearly 45 percent of Equal Employment Opportunity Commission (EEOC) claims were for retaliation. Retaliation is extremely common in California discrimination cases, and just like the cause of it, it is illegal. If you were let go, demoted, received a pay cut, or put through any other adverse attention because you brought a discrimination case against your employer, you are not alone. This post details just some of the many retaliation cases that have happened in recent years.
Even though retaliation is on the rise, employees should feel empowered to exercise their rights and file complaints when they see wrongdoing in the workplace.
Human Resources departments should encourage employees to work with supervisors and managers to resolve claims.
Human Resources managers can also stress a zero-tolerance policy. This allows employees to feel more comfortable voicing their concerns should they experience retaliation against a manager.
Determining Workplace Retaliation in CA
Retaliation against an employee can come in many forms. Adverse employment actions include termination, demotion and pay reduction. To determine whether an action can be considered retaliation, California court decisions tend to use the materiality test.
The materiality test determines whether an action would be sufficient enough to negatively affect a condition of the employee’s employment. Under this test, job transfers and negative performance evaluations would be sufficient without demotion, a pay reduction or other consequences.
A retaliation claim must show a link between the protected activity and the adverse employment action. The employee has the burden of proving that the employer’s adverse action occurred because the employee engaged in protected activity. The fact that the adverse action happened soon afterward can help prove retaliation.
Sometimes supervisors and managers do not communicate with each other with regards to disciplinary actions. Therefore, it’s possible that one supervisor may be unaware of the protected activity, while the other took the adverse action against the employee. Since these two events are not related, the employer may not be liable for retaliation in these cases.
California Laws Prohibiting Retaliation
Retaliation is an action that can apply to many laws. California actually has nearly 50 laws protecting employees and job applicants against retaliation from employers.
Here are some of the laws relating to retaliation that you should know about:
- Labor Code Section 96(k). This law protects an employee from demotion, suspension or discharge from employment because the employee recognized his or her constitutional rights away from the employer’s premises and during non-working hours.
- Labor Code Section 98.6. This law protects an employee who files a complaint with the Labor Commissioner.
- Labor Code Section 230(a). Prohibits an employer from retaliating against an employee who takes time off to serve on a jury after giving reasonable notice.
- Labor Code Section 230(b). This law protects an employee who is a crime victim and is required to take time off work to appear in court.
- Labor Code Section 230.7 and Education Code Section 48900.1. Protect an employee who is a parent or guardian and must take time off from work to appear at their child’s school upon request.
- Labor Code Sections 232(a) and (b). This law makes it illegal for an employer to require that an employee refrain from discussing wages with others.
- Labor Code Sections 233 and 234. Prohibit employers from retaliating against employees who use sick leave that accrued during the last six months.
- Labor Code Section 432.9. This law prohibits state and local agencies from asking applicants for employment to disclose information about conviction history until the applicant meets the minimum qualifications for the position.
- Labor Code Sections 1025-1028. State that every private employer with at least 25 employees is required to provide reasonable accommodations for employees who wish to participate in an alcohol or drug rehabilitation program.
Retaliation in the Workplace Examples
Imagine that you have to deal with gender discrimination in the workplace for years. You watch as other men (or women) get promoted, despite the fact that you are equally if not more qualified, while you stay in the same, low-paying position that you started in.
Woman Wins $168 Million in Sexual Harassment Retaliation Case
One California woman, Ani Chopourian, filed a sexual harassment claim against her then employer, Mercy General Hospital, after a slew of some of the raunchiest sexual harassment actions heard in court left her emotionally and physically ill.
According to eye-witness statements, there were several harassers involved, each of which thought it was appropriate to make sexual innuendos toward Chopourian, poke her with a surgical needle, and downplay her skill as a surgeon simply because she is a woman.
According to reports, Chopourian would turn to a supervisor when an inappropriate comment was made and ask him or her to “do something.” The supervisors would just laugh.
In a two-year period, Chopourian filed 18 written complaints with the hospital. Her last complaint was received by HR on July 31, 2008. She was fired on Aug. 7, 2007.
Chopourian retained the help of an attorney and filed a wrongful termination suit. She was awarded one of the largest individual employment law verdicts in the nation: a whopping $168 million: $125 million in punitive damages, $39 million for mental anguish, and $3.5 million for lost wages and benefits.
Fisher Nut Company Agrees to Pay $150,000 to Settle Retaliation Suit
Modesto-based Fisher Nut Company was accused of firing seven Latinas who attended an informal meeting regarding a discrimination charge. According to reports, the Latinas constantly faced verbal threats and irrational warnings for “laughing.”
The women were moved from job to job, and eventually placed in entry-level almond-sorting positions, despite their experience. Within two months of the informal meeting, the seven women were terminated, though not all at once.
The women sought the help of a skilled retaliation attorney and eventually forced the company to settle for $150,000. Though this is a slightly smaller victory than Ani Chopourian’s, it is a victory nonetheless for wrongfully terminated individuals everywhere.
Mountain View Holiday Inn Sued for Sexual Harassment and Retaliation
Beatriz Garcia, a front-desk clerk at the Holiday Inn Express Mountain View-Palo Alto, faced sexual harassment on a daily basis from her supervisor.
The young woman constantly dealt with inappropriate touching, lewd comments, and threats in response to her complaints. When Garcia notified management of the harassment, she was fired.
Worse, the same manager that committed the harassment called Garcia’s new employer and warned him about Garcia and advised him that he should obtain her personal contact information. Garcia filed a complaint with the EEOC, who charged the hotel with employment discrimination, sexual harassment, and retaliation.
Brandman University Settles Retaliation Suit for $38,000
According to a lawsuit filed by the EEOC in 2011, David Branham, a project manager at the Brandman University Fairfield campus, raised complaints regarding age discrimination. According to Branham’s statements, after bringing attention to the company-wide issue, he was disciplined and given additional duties that were not within his scope of work. Eventually, the adverse treatment forced Branham, age 64, to retire.
The EEOC brought a discrimination and retaliation case against the university. Though the university denied the allegations, it did agree to settle the claim for $38,000.
Fremont Toyota Pays $400,000 in Damages for Harassment and Retaliation
According to reports from the EEOC, the manager at Fremont Toyota singled out four Afghan-American salesmen during a staff meeting, called them “terrorists,” and threatened them with violence. After the meeting, the four men reported the incident to upper management. Instead of helping, their reporting of the incident only served to make matters worse, and they faced retaliation measures such as additional verbal threats and increased job scrutiny.
Eventually, the salesmen felt that they had no other option but to resign. An Afghan-American manager was also fired for sticking up for the four men. Fremont Toyota settled the retaliation suit for $400,000 and vowed to implement manager-training that focused heavily on fair treatment in the workplace.
Delhi Mental Health Rehab Center Settles Retaliation Suit for $25,000
Back in 2006, the EEOC filed a sexual harassment suit against Central Valley’s mental health rehabilitation center on behalf of nine female employees. According to witness testimonies, a supervisor constantly subjected those women to crude sexual comments, boasts about his sexual prowess, derogatory remarks about women, and unwelcome physical advances. The supervisor’s actions continued for five years. The center settled that suit for $145,000.
A second suit was filed shortly afterward, when Audel Mendoza, the husband (then boyfriend) of one of the women, was fired. His termination occurred just days after the EEOC called the center to schedule an on-site inspect of the facility and to interview witnesses. The EEOC proceed to file a retaliation claim against the California-based clinic. The company agreed to pay Mendoza $25,000 for his troubles, as well as to provide a “neutral reference” for him for future employment.
Retaliation is a Serious Offense
As these cases prove, retaliation is not something that employers can get away with. If you or someone you know is the victim of discrimination and subsequent retaliation, you have rights. Reach out to your Los Angeles workplace rights attorney to discuss your legal options and to start building your case. Call Workplace Rights Law Group to schedule your free and private consultation today.
Filing a Retaliation Claim
Employees who engage in protected activity and are terminated as a result can file a claim with the Fair Employment and Housing Council (FEHC). The FEHC will investigate the claim against the employer, and if there is sufficient evidence, they will proceed with the claim. If not, they will close the claim. You will then be able to file a lawsuit against the employer.
By filing a lawsuit, you can recover compensation for various types of damages. This can include attorney fees and costs, back pay, front pay, lost benefits and mental anguish. Your lawyer can help you recover other forms of damages as well.
Are You a Victim of Workplace Retaliation in California? Seek Legal Advice
Even though California is an at-will state, you cannot be fired for certain reasons. Under state law, you cannot be fired for filing a claim against your employer or engaging in a protected activity.
If you are fired or are the victim of other adverse action, you can file a lawsuit.
The Los Angeles retaliation attorneys at Workplace Rights Law Group LLP can help you protect your legal rights. Our lawyers have decades of experience helping those who are wrongfully terminated from their jobs. Contact us today to schedule a free case review by calling (818) 844-5200.