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By Paul P. Cheng, Esq.
Our offices handle many different areas of law. One area in particular is Employment Law. Employment Law is one of the most difficult and complex areas to handle.
An area I have come across lately is employer retaliation against an employee. Below is a brief summary of what retaliation is. This will help you in picking the right person to handle your legal issues. If the person you speak to does not know the elements of retaliation watch out. They may not understand the complexities of this tough area of the law. This brief summary will help either employer or employee in understanding Retaliation.
Good luck!
DEFINITION
California law prohibits an employer, labor organization, employment agency or person from discriminating against any person because that person has opposed any discriminatory practice.
The Fair Employment and Housing Act proscribes retaliation more broadly than discrimination. The general prohibition against discrimination extends only to discrimination “against the person in compensation or in terms, conditions or privileges of employment.” In contrast, the prohibition against retaliation states simply that an employer may not “discriminate” against any employee who opposes discrimination.
To establish a prima facie claim of retaliation under the Fair Employment and Housing Act, a plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and that there is a causal link between the protected activity and the employer’s adverse action.
The California statute prohibiting retaliation discrimination is the Fair Employment & Housing Act (FEHA). CAL. GOV’T CODE §12900 et seq. The FEHA’s federal counterpart is Title VII of the Civil Rights Act of 1964. 42 U.S.C. §2000e et seq.
THESE ARE THE ELEMENTS YOU NEED TO PROVE IN WORK PLACE RETALIATION
PROTECTED EMPLOYEE
An employee is one engaged by an employer to do something for the benefit of the employer or a third person. CAL. LAB. CODE §2750.
EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, OR PERSON
The FEHA prohibits an employer, labor organization, employment agency or person from retaliatory discrimination.
ADVERSE TREATMENT
An employer may not discharge, expel, or otherwise discriminate against a person who has opposed discriminatory practices.
RETALIATORY INTENT
The plaintiff must show a causal link between the employee’s opposition to a discriminatory practice or activity and the adverse action of the employer.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Before filing a complaint for retaliation under the FEHA, the employee must first exhaust available administrative remedies by filing a charge with the California Department of Fair Employment & Housing.
SO WHAT ARE YOU ALLOWED TO GET IF YOU CAN PROVE RETALIATION?
• Back Pay
• Front Pay
• Emotional Distress Damages
• Attorneys’ Fees
• Punitive Damages
STATUTE OF LIMITATIONS (SOL)
A plaintiff must file a discrimination charge with the California Department of Fair Employment and Housing (DFEH) within one year from the date of the most recent act of discrimination. CAL. GOV’T CODE §12960. This period may be extended for up to 90 days if the plaintiff did not learn of the discrimination within a year of its last occurrence. CAL. GOV’T CODE §12940. The employee must file a civil lawsuit within one year from the date that the DFEH issues a “Right-to-Sue” notice to the employee. CAL. GOV’T CODE §12965(b).
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