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"Retaliation Defense"

Daily Journal
By: E. George Joseph
12/08/06

Retaliation claims are becoming prevalent and the reason is simple. Proving a claim for unlawful discrimination or harassment can be difficult, but proving a claim for retaliation can be much easier.

For example, to prevail on a claim for sexual harassment, the employee must prove that there was offensive conduct of a sexual nature that was severe or pervasive, unwelcome and unsolicited, and it caused damage to the employee. On the other hand, employees can establish a retaliation claim merely by showing that they complained about harassment, suffered some sort of job detriment, and there is credible evidence of a causal connection between the two events. Employees need not even be correct in their belief that the conduct amounted to unlawful harassment.

It is common for employees to lose on the underlying claim but win on a claim for retaliation. This trend is fueled by several recent court decisions that significantly expand the circumstances under which wrongful retaliation can be established.

Claims of retaliation are also popular among employee plaintiffs because they are more likely to result in an award of punitive damages. In Rena Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128 (1998), the case that struck fear in the hearts of law firms nationwide, the sexual harassment alleged by the plaintiff was severe, but what really inflamed the jury was way the firm retaliated against those who complained. In explaining the $7.1 million punitive damage award, one juror commented: "Any time anybody complained, they were retaliated against in some fashion, so we thought we should give [the law firm] a good wake-up call."

Given this state of affairs, it is more important than ever that employers be counseled to avoid behavior that can give rise to these claims - not just the obvious advice to be careful when disciplining an employee who has asserted a claim, but the more subtle ways in which an employer can find itself in trouble. Some examples follow.

An employee can, of course, make a claim for retaliation that occurred while she was employed. But the law also protects former and prospective employees as well. Robinson v. Shell Oil Company, 519 U.S. 337 (1997); Government Code Section 12940(h).

For example, consider the employee who frequently complains about alleged discrimination while employed by Company A. When that employee quits and applies for a job at Company B, and the recruiter for Company B calls for a reference, Company A would be well advised not to mention the employee's complaints. One would assume that there could be no defamation liability for simply telling the truth about the employee's frequent complaints. But truth is not a defense to a retaliation claim, and the qualified privilege of Civil Code Section 47(c) is not likely to apply.

On the other end of the process, employers should take care if an applicant voices a complaint about an inappropriate interview question (e.g., "Do you plan to start a family?"). If that applicant is passed over in favor of one who is less qualified, the prospective employer may find itself on the wrong end of an award of front pay. And what of the temporary employee who voices complaints to company management about alleged safety violations? The employer who considers calling the temp agency and telling them not to send the "troublemaker" over again should think twice. None of the laws prohibiting retaliation exclude temporary employees from their protection. On the contrary, the Fair Employment and Housing Act prohibits retaliation against "any person," which includes applicants for employment and temporary employees. Government Code Section 12940(h).

Employers often assume that an employee cannot prevail on a retaliation claim unless the conduct complained of actually turns out to be unlawful. But it has long been the law in California that the employee must only have a reasonable, good-faith belief that wrongful conduct is occurring - he does not have to be correct.

In Yanowitz v. L'Oreal USA Inc., 36 Cal.4th 1028 (2005), an employee was directed by her supervisor to fire a subordinate employee because that employee was "not good looking enough." The employee refused to carry out the termination, because she felt it would be unlawful discrimination to do so. Although the employee did not specify to her supervisor the reason for her refusal, the court held that a retaliation claim could be stated.

According to the court, the employee did not even need to mention the law she felt would have been violated when refusing to follow a supervisor's instruction that she felt was wrong. No legal terms or buzzwords need be uttered. As long as an employee has a subjective, good faith belief that she is being asked to do something unlawful, she is protected against retaliation.

If an employer is going to discipline an employee for making a false claim about a matter such as alleged discrimination, it had better be certain it can prove that the employee asserted the claim in bad faith - a showing which is often difficult to make.

Another fertile area for retaliation claims is where an employer seeks to discipline an employee for lawful off-duty conduct, such as smoking, drinking alcohol or engaging in political activities the employer finds distasteful. One can make the intuitive arguments that some of these behaviors might well have impacts in the workplace. Nevertheless, as a general rule, what an employee lawfully does during his or her time off work is the employee's business, and an employer who attempts to regulate such conduct risks claims not only for invasion of privacy, but for retaliation as well. Labor Code Sections 96(k), 98.6 and 1101.

Most recently, in Burlington Northern & Santa Fe Railway Company v. White (June 22, 2006) No. 05-259, the U.S. Supreme Court broadly defined retaliation to include any action that might tend to discourage employees from engaging in protected activity, even if it does not directly affect the workplace. This is a significant expansion in the scope of wrongful retaliation claims, as most courts have held that the retaliatory act must at least have some direct connection to the plaintiff's conditions of employment.

The Burlington Northern decision applies only to claims under Title VII, the federal law prohibiting discrimination. Most claims against California employers are filed under California's Fair Employment and Housing Act and other state laws, which so far define retaliation more narrowly than the Supreme Court has. But because employees may still file claims under federal law, it is important for employers to prevent retaliation, in any form, against employees who assert claims or engage in other protected behavior.

Managers should know that any adverse action they may take against an employee, whether or not directly involving the workplace, can give rise to liability.

Occasionally, an employer may even make matters worse for itself by conferring greater protection on an employee than the law requires. It is important for an employer to reassure an employee who raises a concern that the employee is protected against retaliation for raising the concern. But if that message is not carefully communicated, an employee may get the message that once he complains, he is absolutely protected and cannot be disciplined at all. An employee must understand that protection against retaliation is not the same as job security.

For example, a common scenario involves an employee who is a participant in wrongful conduct together with a group of other employees. If the employee fears that he may be caught, he may decide to "rat out" his co-conspirators by blowing the whistle to management. The employee may preface his whistle-blowing by asking the manager for assurance that if he reports something, his job will be protected because he is a whistle-blower. The manager must be careful not to give such a blanket assurance, however, because an employee who reports wrongful conduct in which he was involved is not automatically insulated from the consequences of his own wrongful actions. Jacobs v. Universal Develop. Corp. 53 Cal.App.4th 692 (1997).

The changing landscape of retaliation law presents new challenges for the employer seeking to strike the proper balance between preventing workplace retaliation and effectively managing employee performance. Employment counsel can play an important role in helping managers to avoid situations in which a retaliation claim can occur.

E. George Joseph is a partner in the Irvine office of Nossaman, Guthner, Knox & Elliott, where he represents management in employment law matters.

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