Employer Retaliation for Filing a Discrimination Complaint

California law prohibits employers from retaliating against employees for having filed a discrimination report. The Equal Employment Opportunity Commission (EEOC) states, “An employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.”

If you alerted an agency about discrimination in your workplace on the basis of protected characteristics such as race, gender, age or sexual orientation, and your employer has retaliated in some way against you, you may be able to file a retaliation claim to recover compensation for damages.

Understanding Employer Retaliation

California’s Government Code Section 12940 concerns discrimination in the workplace. Part (h) provides that it is unlawful “[f]or any employer, labor organization, employment agency, 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.”

Dr. Paul Mattiuzzi provides an insightful explanation of the core of retaliation on EverydayPsychology.com. He writes, “Retaliation is not the same as harassment or ‘hostile workplace,’ and it is not about people getting revenge or ‘getting back’ at anyone. Retaliation is about making people afraid to complain or to assert their rights. It is a subtle, but important distinction.”

Who is protected under the law?

California stipulates that the following parties are covered under employer retaliation protection law.

  • Employees who’ve in some way opposed employment discrimination (filing a report, picketing against discrimination, etc.) based on race, color, sex, religion, national origin, age or disability.
  • Employees who have requested a reasonable accommodation based on religion or disability.
  • Those who have a close association with the person engaged in a protected discrimination-related activity. For example, it’s retaliation when an employer fires an employee because his wife filed a discrimination lawsuit.

Examples of Retaliation

In order for a situation to be considered employer retaliation, the adverse action must be substantial, and it must be unjustified. Petty annoyances such as a single negative comment on your performance review or getting reprimanded for poor work performance are not retaliation.

There are many clear-cut instances of retaliation. For example, let’s say you are up for a promotion for which you are duly qualified, and there’s proof (comments, recorded calls, etc.) that the employer denied you the promotion solely because you are a minority. You file a discrimination report with the EEOC or the Department of Fair Employment and Housing. When the employer catches wind of your report, suddenly you are demoted without due cause, and your boss starts making subtle threats towards you. This likely would be a case of employer retaliation, and you would have grounds to file a lawsuit.

Below are few additional examples of adverse actions that fall under retaliation-related employment discrimination.

  • Wrongful termination
  • Promotion denial
  • Unjustified negative evaluations
  • Unjustified surveillance
  • Assault
  • Unfounded civil or criminal charges against the employee to deter him/her from pursuing his/her rights

Are you the victim of retaliation? Call Hiden, Rott & Oertle.

If you think you might have a viable case of retaliation, contact our office for help. Our labor and employment attorneys at Hiden, Rott & Oertle have experience handling all sorts of retaliation and discrimination cases both in and out of the courtroom, and we are deeply passionate about helping wronged employees recover their damages.

Contact us today at 619-296-5884 to set up a free consultation.

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