DECEMBER 2005

CALIFORNIA SUPREME COURT EXPANDS

POTENTIAL LIABILITY FOR CLAIMS OF RETALIATION

Generally, an employee can bring a claim of retaliation asserting the employee was subjected to an “adverse employment action” because of their participation in “protected activity”. In the recent decision of Yanowitz v. L’Oreal, the California Supreme Court reviewed the standard for claims of retaliation, expanding what amounts to “protected activity” and what constitutes an “adverse action”.

"Protected Activity"
A retaliation claim includes an allegation that the employee engaged in “protected activity” by opposing a practice that is unlawful under the Fair Employment and Housing Act (FEHA) , such as reporting or objecting to an unlawful act, such as unlawful harassment or discrimination. Here, the Court found that an employee is protected from retaliation even when the employee does not expressly complain or oppose a practice but “reasonably“ and “in good faith” conveys her belief that the conduct is unlawful. The Court stated that it was not necessary for an employee to explicitly state that they believed the conduct they were opposing is discriminatory or unlawful- a mere reasonable good faith assertion is enough.
In the case before the Court, the Plaintiff never made a report or complaint objecting to an unlawful practice. Instead, the Plaintiff refused to comply with her supervisor’s instruction to terminate a female salesperson because she was “not hot enough”. The Plaintiff repeatedly asked for “justification” for the termination since the salesperson in question was a top salesperson. No justification was ever provided and therefore the Plaintiff never terminated the employee. Following this incident, the Plaintiff alleged her own performance was unduly scrutinized and she received hostile evaluations for the first time in her career. The Plaintiff sued, claiming among other things, retaliation under FEHA. She was permitted to pursue her retaliation claim because her actions were deemed to be sufficient enough to establish that the employer knew that the employee’s refusal to comply with the order was based on the employee’s reasonable belief that the instruction was discriminatory.
The Court found that the Plaintiff had sufficiently conveyed to her employer that she considered the termination order discriminatory by repeatedly requesting adequate justification to fire the female and such was sufficient to find she had engaged in “protected activity”. Law Offices of Cynthia Elkins

"Adverse Employment Action"
The Supreme Court evaluated what standard should be used to determine if an “adverse employment action” had been taken. The Court found that the “materiality test” was the proper test so that the courts must look at the “totality of the employer’s conduct” to determine if there was a material effect on the employee’s employment. Minor or trivial acts that may upset an employee generally are not actionable, but “adverse treatment” that is reasonably likely to impair a reasonable employee’s job performance, prospects for advancement or promotion will be considered an “adverse action”.

Educate all supervisors that any action taken against

Claims of Retaliation Dec 2005 - SB

Back

This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as "legal advice". If additional information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to contact Cynthia Elkins for further information. All rights reserved. ©2005.