What Is FEHA Retaliation?

A California employee generally must establish three fundamental components of a FEHA retaliation claim:

1. The employee engaged in a protected activity.
2. The employer subjected the employee to an adverse employment action.
3. There was a causal connection between the protected activity and the adverse action.

The third element is particularly important. A difficult supervisor, personality conflict, or unfavorable employment decision is not necessarily retaliation. The adverse action must be connected to the employee's protected conduct. (Daily Journal)

What Counts as Protected Activity?

Protected activity can take many forms.

An employee may be protected when opposing conduct prohibited by FEHA, reporting discrimination or harassment, requesting a reasonable disability or religious accommodation, requesting pregnancy-related accommodation, or participating in certain investigations or proceedings involving workplace discrimination. (Daily Journal)

Importantly, employees do not necessarily have to use legal terminology when raising concerns. What matters is the substance and circumstances of the employee's conduct.

That makes documentation particularly important. Emails, written complaints, HR reports, accommodation requests, and other records may help establish what the employee reported, when the employer learned about it, and what happened afterward.

Retaliation Is More Than Being Fired

Termination is perhaps the clearest example of an adverse employment action, but retaliation can be more subtle.

California courts consider whether employer conduct is reasonably likely to adversely and materially affect an employee's job performance or opportunities for advancement. Depending on the circumstances, retaliation may involve demotion, discipline, undesirable assignments, lost opportunities, or other materially adverse changes. (Daily Journal)

The California Supreme Court has also made an important distinction: an employer's failure to investigate a complaint does not, standing alone, automatically constitute retaliation. In Bailey v. San Francisco District Attorney's Office, the Court explained that inaction following a complaint is not itself necessarily an adverse employment action for a retaliation claim. (Justia)

That does not mean an employer's conduct following a complaint is irrelevant. The entire sequence of events may matter.

Timing Can Be Important—But It Is Not Everything

Consider this scenario: An employee reports what they believe is discriminatory conduct. Two weeks later, a supervisor who previously praised the employee's performance issues a severe written warning. Soon afterward, the employee is removed from important meetings and eventually terminated.

The timing may raise questions about retaliation, but timing alone does not automatically prove a case.

Courts can examine the totality of the circumstances, including what decision-makers knew, the reasons given for their decisions, how the employee was treated before and after the complaint, and whether those explanations are consistent with the available evidence. Temporal proximity can be one factor in evaluating causation. (Daily Journal)

Remote Work Has Changed Where Evidence Can Appear

Retaliation and harassment no longer have to occur face-to-face. 

Digital workplaces can generate extensive evidence, including:

• Slack and Microsoft Teams messages
• Emails and text messages
• Zoom communications
• Calendar invitations and meeting exclusions
• Performance reviews
• HR communications
• Social-media activity

Recent cases illustrate why conduct occurring away from a physical workplace cannot automatically be dismissed as irrelevant. The Daily Journal article points to decisions involving electronic distribution of inappropriate material, social-media conduct affecting the workplace, and off-premises communications between employees. (Daily Journal) 

For employees, that means a home office does not necessarily put workplace conduct outside California employment law.

It also means preserving digital evidence can be critical.

What Should Employees Do If They Suspect Retaliation?

Employees who believe they are experiencing retaliation should avoid relying solely on memory.

Keep copies of relevant documents you are legally entitled to retain. Create a chronology identifying when protected activity occurred and what happened afterward. Preserve relevant emails, messages, performance evaluations, disciplinary notices, and communications with human resources.

At the same time, avoid taking confidential company information or records you have no right to possess. Evidence preservation should be handled carefully.

Most importantly, do not assume that a workplace action is either automatically unlawful—or automatically lawful—based solely on how it feels. Retaliation cases are highly dependent on their particular facts. 

California Employees Have the Right to Speak Up

FEHA's anti-retaliation protections serve an important purpose: workplace discrimination and harassment laws would offer little protection if employees could be punished simply for invoking the rights those laws provide.

As workplace interactions increasingly occur through digital channels, the evidence surrounding retaliation may look different than it did years ago. The underlying question, however, remains the same: Was an employee subjected to materially adverse treatment because they engaged in legally protected activity?

If you believe your employer retaliated against you after you reported discrimination or harassment, requested an accommodation, or exercised another protected right, an employment attorney can evaluate the circumstances and explain your options.

For more information or to schedule a confidential, free consultation, contact McGonigle Law at (800) 713-5260.