Say you complain to your supervisor that another co-worker is harassing you or that you are not getting adequate accommodations. The next day or next week your supervisor writes you up for being “unable to get along” in the workplace or reduces your hours if you are an hourly employee. You suspect that the write up or reduction in hours is retaliation for complaining about the harassment or lack of accommodations. Do you have a case? Did your supervisor violate your legal rights?
California law prohibits sexual harassment or discrimination based on disability or another protected category. This law is known as the Fair Employment and Housing Act (FEHA). FEHA also protects employees against retaliation. An employee has to show that the following three elements exist to prove a case of retaliation: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to an “adverse employment action;” and (3) there is a causal link between the protected activity and the employer’s action. That’s a lot of legal words, so we will address the requirements one by one.
1. FEHA defines a protected activity as opposing practices prohibited by FEHA or filing a complaint, testifying, or assisting in any proceeding under FEHA. In plain language, an employee engages in a protected activity when he or she complains about not receiving adequate accommodations or being discriminated against due to race, sex, gender, ethnic origin, and other categories listed in the FEHA.
2. Adverse employment action is “a material change in employment,” or an action by the employer that has a “substantial and detrimental” effect on one’s employment. A significant reduction in pay or in hours of work is an adverse employment action. A demotion from a manager to an hourly employee is another example of an adverse employment action. Whatever action the employer takes has to significantly affect the employee’s employment and for the worse. A one time event is usually not enough to be an adverse employment action.
3. Causal link, also known as nexus, is the connection between the protected activity and the adverse employment action. A causal link or nexus is usually established by showing the adverse employment action is close in time to the protected activity. For example, you complain to your supervisor today about the sexual harassment and are written up tomorrow. Or, you request accommodations due to a disability or pregnancy and you are terminated shortly thereafter. Both scenarios suggest a nexus between the protected activity (the complaint) and the adverse employment action (the write up or termination).
Employment law is complicated and fact intensive. Contact the friendly and experienced Los Angeles employment law attorneys at Stephen Danz & Associates for a free consultation today. We are happy to talk to you if you think you have been retaliated against or have any other employment law related questions. We represent employees only across the great state of California.