WORKPLACE RETALIATION Under the California Fair Employment and Housing Act

1. WORKPLACE RETALIATIONUnder the California Fair Employment and Housing Act Phyllis W. Cheng, Director California Department of Fair Employment & Housing www.dfeh.ca.gov

2. Overview on Workplace Retaliation Introduction. Basic protections under the FEHA. Potential defenses and limits to liability. Recent trends and case law. Best practices.

3. Introduction • The DFEH’s civil rights mission. • Statutes enforced: • Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); • Unruh Civil Rights Act (Civ. Code, § 51 et seq.); • Ralph Civil Rights Act (Civ. Code, § 51.7); and • Disabled Persons Act (Civil Code, § 54 et seq.). • Jurisdiction.

4. California Department of Fair Employment and Housing Calendar Years 2008 - 2010 Cases Filed: Count of Bases (54,801 Employment Cases)

5. California Department of Fair Employment and Housing Calendar Years 2008 - 2010 Cases Filed Against State Agencies by Bases (1,346 Employment Cases)

6. The FEHA’s Protection against Workplace Retaliation “It is an unlawful employment practice for an employer to “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part ....” (Gov. Code, § 12940, subd. (h).)

7. Elements of a Retaliation Claim Prima facie case: • Protected activity. • Adverse job action. • Causal link.

8. What is Protected Activity? The employee, applicant or contractor: • Opposes an unlawful employment practice under the FEHA; or • Files a complaint, testifies, or assists in a proceeding under the FEHA.

9. What is Adverse Job Action? The employer: • Refuses to hire or employ; • Refuses to select for training program leading to employment; • Bars or discharges from employment or training program leading to employment; or • Discriminates in compensation or in terms, conditions or privileges of employment.

10. What is Causal Link? Circumstantial evidence: • Employer aware of protected activity; and • Adverse action followed within a relatively short period in time.

11. Hypothetical 1 • An award-winning regional sales manager for a cosmetic company repeatedly refused to carry out an order from a male supervisor to fire a female sales associate who, in the supervisor's view, was not sufficiently sexually attractive. After a short time, the male supervisor tried to get the sales manager’s subordinates to undermine and oppose her. He then criticized the sales manager at every turn and threatened to end her 18-year career with the company. The sales manager was forced to quit. Prima facie case of retaliation? • Is there protected activity? • Is there adverse job action? • Is there a causal link? Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028

12. Hypothetical 2 • A registered nurse of Mexican citizenship, who worked as a temporary independent contractor for a hospital, told the nursing supervisor a patient had complained that not enough nurses spoke Spanish. The supervisor expressed surprise that the nurse had no accent since she was foreign and asked why she did not return home to work in Mexico. Soon after, the nurse applied for a permanent nursing position there doing the same job, but was not selected even though she met the qualifications and the hospital continued to keep her on as an independent contractor. She filed a DFEH complaint for national origin discrimination. During the DFEH investigation, the hospital terminated her as a contractor. Prima facie case of retaliation? • Is there protected activity? • Is there adverse job action? • Is there a causal link? Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138

13. Affirmative Defense • The employer has a legitimate, non-discriminatory reason for the adverse job action.

14. Hypothetical 3 • An employee at an armored transportation company was the subject of an internal investigation into missing cash and knew he could be terminated depending on the outcome. During the investigation, he notified his employer for the first time that he was suffering from pain and numbness in his arms, fingers, shoulders, and feet, and that he filed claims for workers' compensation. Days later, he was terminated based on the results of the investigation. The employee then filed a lawsuit claiming retaliation under the FEHA. Is there an affirmative defense of a legitimate, non-discriminatory reason for the adverse job action? Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327

15. Hypothetical 4 • A marginally performing office technician was a frequent participant in radio station-sponsored bikini contests outside of work. The head of her agency came to one of her bikini contests and tried to kiss her on the mouth. She was "taken aback, but not offended." She told a co-worker, and it eventually got back to the higher-ups. During the short time she worked for the agency, the office technician’s performance was criticized and her managers changed her hours "to make [her] job less desirable," and encouraged her to resign before she was disciplined or fired for poor performance. When she resigned, she was also instructed to write a statement denying that the agency head ever kissed her at the bikini contest. Eventually, she sued for constructive termination. Is there an affirmative defense of a legitimate, non-discriminatory reason for the adverse job action? Steel v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241

16. Liability for Retaliation • Employer liability: Yes. • Non-employer or supervisor liability: No.

17. Recent Cases • Kelley v. Conco Companies (June 1, 2011) __Cal.App. 4th __ [2011 WL 2177235] • In a summary judgment appeal, the court found a genuine issues of material fact as to whether an employee's coworkers engaged in retaliatory harassment sufficiently severe to constitute an adverse employment action, whether employer had actual or constructive knowledge of the improper conduct, and whether employer took appropriate action in response precluded summary judgment on retaliatory harassment claim.

18. Recent Cases • Thompson v. North American Stainless, LP (2011) __ U.S. __ [ __ L.Ed. __; 131 S.Ct. 863] • After the employee’s fiancée filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against their employer, the employer fired the employee. He filed his own charge and a subsequent suit under Title VII of the Civil Rights Act, claiming that his employer fired him to retaliate against his fiancée for filing her charge. The U.S. Supreme Court found standing for the employee under Title VII.

19. Recent Cases • Dawson v. Entek Intern (9th Cir. 2011) 630 F.3d 928. • A former temporary employee, who was a male homosexual, brought action against employer under Title VII alleging retaliatory discharge among other claims. The court held the employee produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution by summary judgment was error.

20. Best Practices • Put retaliation on the workplace map: • Train management and employees. • Incorporate into all appropriate written policies. • Build specific anti-retaliation information into employee training programs.

21. Best Practices 2. Have experts review complaints: • Provide high level HR review. • Funnel all retaliation complaints to senior group for review. • Review the specifics of each incident and explore the context in which the matter arose. • Determine the likely existence of “protected activity”. • Decide on an appropriate response. • Provide guidance and coaching to direct supervisors and managers .

22. Best Practices 3. Ensure internal quality control: • The centralized complaint-and-review function must ensure the quality and thoroughness of its work. A good process results in: • Adequate and accurate records and documentation . • Fair decisions . • Similar treatment of all similarly situated employees . • Neutralization of any anger, frustration or unwarranted urgency in the decision-making process . • Responses timed and managed to minimize any perceived connection to the complaint/report .

23. Best Practices 4. Use performance management to prevent retaliation: • Complete, addressing job expectations, evaluating job performance and offering clear feedback to employees—including any coaching, warning, discipline or discharge . • Thoughtful and deliberate—that is, avoiding canned or formulaic appraisals and feedback. • Carefully executed by supervisors who create complete and accurate assessments of employees and honor all stages of the process . • Thoroughly documented in writing, with records kept in a central file .

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