Retaliation Under the California Fair Employment and Housing Act

Under the California Fair Employment and Housing Act (“FEHA”), an employer may not “discharge, expel, or otherwise discriminate against any person because the person opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].”  Cal. Gov. Code § 12940(h). 

FEHA retaliation claims follow the McDonnell-Douglas burden-shifting framework.  Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005).  To establish a prima facie case for retaliation, the employee must establish that (1) they engaged in an activity protected under FEHA, such as filing a discrimination claim; (2) the employer subjected them to adverse employment action; and (3) there was a causal connection between the employee’s protected activity and the employer’s adverse action.  Id.  Once the employee has established a prima facie case for retaliation, the burden shifts to the employer to provide a legitimate, nonretaliatory explanation for the adverse employment action.  Id.  Should the employer successfully rebut, the burden shifts back to the employee to prove intentional retaliation.  Id. 

A protected activity under FEHA is one which “involves some level of opposition to the employer’s actions based on the employee’s reasonable belief that some act or practice of the employer is unlawful.  Kelley v. Corrects Corp. of America, 750 F.Supp.2d 1132, 1144 (E.D. Cal. 2010).  The protected activity element is thus satisfied by showing an employee “threatened to file a discrimination charge, by a showing that the [employee] mistakenly, but reasonably and sincerely believed [they were] opposing discrimination, or by evidence that an employer believed the employee was a potential witness in another employee’s FEHA action.”  Rope v. Auto-Chlor Sys. Of Wash., Inc., 220 Cal. App. 4th 635, 652 (2013) (superseded by statute on other grounds).

Failure to promote, for example, is an adverse employment action within the meaning of the FEHA.  Trulsson v. County of San Joaquin Dist. Attorney’s Office, 49 F.Supp. 3d 685, 693 (E.D. Cal. 2014) (citing Jones v. Dep’t of Corr. & Rehab., 152 Cal.App.4th 1367, 1380 (2007)).

To satisfy the causal connection, the employee must show that the protected conduct was a “substantial motivating factor” in the adverse employment decision.  Alamo v. Practice Mgmt. Info. Corp., 219 CalApp.4th 466, 479 (2013).  The required causal connection may be inferred from circumstantial evidence, such as the employer’s knowledge of the employee’s engaging in protected activity, the proximity in time between the protected activity and the adverse employment action, or the identity of the decisionmaker.  Trulsson, 49 F.Supp. 3d at 689; Flait v. North American Watch Corp., 3 Cal.App.4th 467, 479 (1992). 

Where retaliatory reasons are proved to be a substantial motivating factor for an employer’s adverse employment action, the employer may limit its liability by showing that it would have made the same employment decision absent the retaliatory motive.  See Harris v. City of Santa Monica, 56 Cal. 4th 203, 233-44 (2013); Alamo, 219 Cal.App.4th at 469-70 (applying the same-decision defense to FEHA retaliation claims).  The same-decision defense is not a complete shield of liability, but instead limits the employee’s remedies to declaratory and injunctive relief and reasonable attorney’s fees.  Harris, 56 Cal. 4th at 225, 241.  In awarding limited remedies to employees in such mixed-motive situations, the California Supreme Court sought to balance the need to redress, prevent, or deter discrimination against rewarding unjustified windfalls.  Id. at 233, 235.