Workplace Retaliation

Do You Have A Workplace Retaliation Case?

Whether the Retaliation is based on gender, age, disability or some other protected class, here’s a general breakdown of how things work and what to look for if you might have a workplace Retaliation case.

As always, feel free to contact us at any point for a 100% free consultation – we’re here to help! 

What Is Workplace Retaliation?

Quite simply, unlawful workplace retaliation occurs when your employer retaliates against you for reporting illegal activity or refusing to participate in illegal activity.

Two Important Notes:

1.     You are only protected by law if you report illegal activity – i.e. illegal harassment or discrimination based on a protected class or protected activity or some other type of conduct that is illegal under California or Federal law

2.     You don’t need to be 100% correct about it being illegal, as long as you have a good-faith belief that the conduct is illegal, you should be protected from retaliation for bringing that complaint forward

What Type Of Laws Prohibit Retaliation?

There’s actually several laws in California that prohibit retaliation.

The Fair Employment and Housing Act (“FEHA”) makes it illegal to discriminate or harass someone because of their protected class. However, the FEHA also makes it illegal to retaliate against someone for opposing (complaining about) or refusing to participate in that same illegal harassment or discrimination.

The California Labor Code also prohibits retaliation for reporting suspected illegal conduct – this is what’s commonly referred to as California’s Whistleblower Protection Law. This statute is much more broad than the FEHA, as it essentially covers any type of complaint about any type of suspected illegal activity. This is why in many cases, you will see an employment attorney allege both theories of retaliation (under the FEHA and again under the Labor Code) as they may both apply.

What Do I Do If I Am Being Retaliated Against?

(1) Report It In Writing & Follow Procedure (If Any)

The best way stop workplace retaliation is to report it in writing to either your Human Resources department or a supervisor or manager that has the power to investigate and correct the issue.

Most all employers have some procedure in place for preventing and stopping workplace retaliation (they’re required to). It’s best to follow that procedure, but make sure that you put your employer on notice in writing, as this may become critical evidence in the future.

Important: Make sure that you outline in your complaint how the retaliation is related to either your protected class, your protected complaint of unlawful harassment or discrimination, or related to your protected complaint of other illegal activity (see our page on whistleblower retaliation). Remember, not all retaliation is illegal.

(2) Supply Facts, Documents And Witnesses To HR (In Writing) And Cooperate With The Investigation

Once you have put your employer on notice, allow them to investigate and correct the issue. It would be advisable to supply HR or your manager with as much facts, documents and witnesses as you can (again, do it in writing). This may help in the future to show whether your employer’s investigation was “in good faith” or if they simply “went through the motions” in order to clear themselves of any wrongdoing.  

(3) Follow-Up As Needed (In Writing) To Report Further Retaliation

Unfortunately, your employer might not be able (or want) to take corrective action against the person who is retaliating.  This can be for a multitude of reasons.

If you are lucky, the retaliation will stop nonetheless. If you are unlucky, it may not stop and may even get worse.

You must report this in writing immediately, even if you don’t think HR or management will do anything to help. This is necessary to document the retaliation and your employer’s failure to take proper corrective action. In California, it is illegal to retaliate against an employee for reporting unlawful conduct, even if it turns-out that the conduct wasn’t actually illegal under the law. As long as you had a genuine, good-faith belief that the conduct was illegal, your complaint is protected and your employer cannot retaliate against you for reporting it.

(4) Consult A Workplace Harassment Attorney

It’s never a bad idea to also consult with a harassment attorney to discuss your options going forward. If you’re still employed, it’s difficult to assert legal claims since most of your damages come from lost wages as a result of termination. Still, it’s advisable to have an attorney apprised of your situation so he or she can possibly add some guidance, review your complaints to management, and be prepared if and when you are terminated as a result.