It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission, participating in a sexual harassment investigation, or opposing discriminatory practices.
FEHA at California Government Code Section 12940(h) declares that 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” (referring to Section 12940 which prohibits, among other things, sexual harassment and gender discrimination) “or because the person has filed a complaint, testified, or assisted an any proceeding under this part.” A violation of California Government Code Section 12940(h) is referred to as retaliation. The federal Title VII has a similar anti-retaliation provision. A typical retaliation claim arises if an employee makes a claim of sexual harassment or gender discrimination and the employer responds with some type of adverse employment action against the employee.
If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation. When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation.
According to Judicial Council of California, Civil Jury Instruction, CACI 2505, in order for a plaintiff to prove retaliation, the plaintiff must prove the following elements:
1 That the plaintiff was involved in an activity protected by FEHA;
2 That the defendant engaged in an adverse employment action against the plaintiff; or that the defendant engaged in conduct that, taken as a whole, materially and adversely affected the terms and conditions of the plaintiffs employment;
3 That the plaintiff’s protected activity was a motivating reason for the defendant’s decision to take an adverse employment action against the plaintiff;
4 That the plaintiff was harmed; and
5 That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Title VII prohibits discrimination against an employee or job applicant who has “opposed any practice made an unlawful employment practice” by Title VII, or has “made a charge, testified, assisted, or participated in any manner” in a Title VII investigation, proceeding, or hearing.
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