Most employers know that retaliation is prohibited under Title VII at the federal level for employees who have engaged in protected activities. California employers also have to stay in compliance with employee retaliation protections under FEHA. Unsurprisingly, the standards applied in California differ from those applied at the federal level.
The California Supreme Court has said that in a situation where there were multiple reasons (such as firing someone for disciplinary reasons) but also an illegal reason – then if there is one that taints the whole decision, then the employer must prove that they still would have taken the adverse action with only the legal reasons being considered. The burden of proof also shifts to the employer in these cases.
"If even one of many, many motives for taking an adverse action is retaliatory, when the burden shifts to you, you're going to have to show that, standing alone, those other reasons overcame the retaliation—and that is hard when there is evidence of retaliation." Patricia Eyres outlined in a recent CER webinar. It can be especially difficult in this day and age of electronic communications, where proof of retaliation can be as close by as the nearest email inbox.
7-point checklist for avoiding retaliation claims in California
What can a California employer do to avoid facing a retaliation claim? Here is a 7-point checklist of items to consider before taking any negative employment action:
- Has the employee been punished for requesting or taking leave under FMLA/CFRA, or other protected leaves of absence?
- Does the employee have a disability, injury, or illness, or has the employee filed a workers' compensation claim?
- Has an employee asked for access to his or her personnel file and been denied?
- Has the employee raised questions about wages, benefits, unions, ethical issues, business practices, billing practices, safety issues, discriminatory practices, business compliance issues of any sort, or claimed that someone in the firm was engaged in illegal or other improper activities?
- Has the employee complained about his or her own treatment or the treatment of another employee?
- Has the employee participated truthfully and in good faith in an internal investigation of any discrimination or harassment complaint?
- Has employment been denied or has an employee been denied an advantage or has an adverse action been taken because a person is perceived to have a health problem?
By asking these questions first, employers may be able to stop retaliation problems in their tracks, before they become a lawsuit later.
The above information is excerpted from the webinar "Supreme Court Roundup for California Employers: The Latest Labor and Employment Law Rulings Explained." To register for a future webinar, visit CER webinars.
Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers' comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.