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Does the California FEHA prohibit retaliation after complaints?

Yes. Whenever an employee makes a good faith complaint of discrimination, employers are prohibited by the California Fair Employment and Housing Act from retaliating against the employee. This also includes workers who assist others in making such a complaint, opposing any FEHA violation, or even complaining of actions that turn out not to be prohibited by the FEHA, as long as the complaint was made in good faith.

In the vast majority of cases, in other words, the FEHA prohibits employer retaliation after an employee engages in legally protected activity. This is similar to federal anti-discrimination laws, which also prohibit retaliation.

What is legally protected activity under the FEHA?

In general, to be protected from retaliation under the FEHA, the employee must make a complaint or oppose a practice that is prohibited by the FEHA. That could include any complaint about discrimination or harassment based on race, sex or age.

That said, courts have determined that it is also protected activity for an employee to complain about or oppose a practice that they genuinely believe violates the FEHA, even if it does not.

In order to qualify for protection, however, the employee must avoid violating their employment contract, even if they are otherwise acting in good faith. For example, an employee can still be terminated if they lie to the company, even if they do so as part of their opposition to a prohibited practice.

The FEHA does not protect people from retaliation when they oppose or fail to cooperate with an investigation into alleged misconduct. For example, protecting false information in order to throw investigators off their case is not considered protected activity.

What constitutes illegal retaliation under the FEHA?

Retaliation can include any adverse employment action taken in response to the employee’s good faith complaint or advocacy. There must be a causal link between this protected activity and the adverse job action, but that job action can include a variety of things:

  • Termination
  • Demotion
  • Pay reduction
  • Job transfer, under certain circumstances
  • Negative performance evaluation, even if it doesn’t lead to other consequences

The main test California courts use to determine whether an employment action is retaliatory is the so-called “materiality test.” Did the employment action materially affect a term or condition of employment? If so, the employment action can be considered retaliatory.

Employees should be aware, however, that retaliation continues to be common, even though it is illegal. Before you take any action to oppose a work practice you believe is discriminatory, discuss your concerns with an employment law attorney who can help you present a convincing case while minimizing the potential for retaliation.