Retaliation or Termination for Protesting or Opposing Discrimination/Harassment

The California Fair Employment & Housing Act (FEHA) protects employees from retaliation based on opposing any practice forbidden by the Act (“opposition”) or filing a complaint, testifying, or assisting in any proceeding under the Act (“participation”). Federal law also protects employees who undertake this type of protected activity.

Thus, FEHA protects employees who oppose discrimination, harassment, or retaliation, including discrimination based upon age, sex, gender, race, color, national origin, religion, pregnancy or disability, as well as marital status and sexual orientation.

To prove her claim, an employee must demonstrate that she engaged in protected activity, the employer subjected her to an adverse action, and there is a causal link between the protected activity and the adverse action. For example, if an employee complains that she is being sexually harassed and is fired the next day, she should look at not only a sexual harassment claim, but also a claim that she was fired for protesting sexual harassment.

The protesting employee need not be “100% right” that the underlying conduct was illegal. The employee need only prove that he or she was reasonable and acting in good faith. Thus, in a variety of situations an employee may succeed in a retaliation case where she or he fails in the underlying discrimination claim. For example, an employee may believe he is not being promoted due to race discrimination, and may lose his claim of race discrimination but win his claim that he was fired in retaliation for complaining that the failure to promote him was discriminatory.

Besides retaliation claims brought under FEHA, there are also retaliation claims for protesting or refusing to participate in other illegal action, brought under state law. See Public Policy/Whistleblowing.

Siegel LeWitter Malkani has successfully represented employees in a number of retaliation claims, including the following examples:

• Representing human resources employees who have complained about violations of human resources practices that violate the law, including a hiring manager who uncovered discriminatory practices, refused to participate in these practices, and, as a result of this refusal, was fired, with the employer covering up the discriminatory practices by claiming the manager was incompetent.
• Representing a long term manager who, at age 61, after receiving a lengthy performance review citing multiple alleged performance problems, complained that he believed this performance review was ageist, and was subsequently fired. An arbitrator found that the firing was ageist and in retaliation for his complaint of discrimination. The arbitrator awarded $1.09 million in economic and emotional distress damages, plus attorneys’ fees, costs and interest, and ruled that the defendants engaged in malicious behavior, entitling the employee to a separate hearing for an award on punitive damages.

If you believe Siegel LeWitter Malkani could provide you with assistance, please contact the firm.