Aug 25, 2009
What constitutes Retaliation?
Retaliation in the employment context exists when an employer takes some adverse action against an employee for complaining of harassment or discrimination or assisting others in their complaints of harassment and discrimination. Retaliation also exists when an employer takes adverse action against an employee who reports illegal conduct by his or her employer (i.e., whistle-blowing).
You know that you have been unlawfully retaliated against when you can demonstrate that (1) you engaged in some type of protected activity, such as complaining of discriminatory or harassing treatment, whistle-blowing against the company for some illegal activity the company is engaged in, or assisting another employee in a similar kind of complaint; (2) the employer has taken adverse action against you, such as demotion, termination, or other conduct that adversely impacts your ability to work; and (3) you can show that the employer's claimed "legitimate" reason for taking the adverse action against you is untrue and that the real reason was, at least in part, because you engaged in the protected activity.
If any adverse employment action is taken against you because you have complained or cooperated with another employee who has complained, or reported what you understand and believe to be illegal activity by your employer, your employer may be subject to liability for violating provisions of the California Fair Employment and Housing Act, the California Labor Code, or other state law and analogous federal law. Whether your complaints of discrimination or harassment are found to be valid is unimportant. Once you complain about what you believe to be discrimination or harassment and your employer takes adverse action against you, your employer is subject to liability regardless of whether discrimination and harassment in fact occurred.
I've suffered retaliation. What should I do?
Be aware that, whenever possible, you have a responsibility to inform your employer of the retaliatory treatment (this usually does not apply if the retaliatory treatment is a termination). Doing so is important because the law requires that your employer investigate all claims of retaliation and take immediate and appropriate action to remedy the situation.
What if the retaliation continues?
Before any lawsuit can be filed against an employer for harassment, discrimination, or retaliation, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. Although the intended result of such a complaint is to give the employer time to remedy its conduct prior to being sued, in many cases, it is simply a formality that must be taken care of prior to a lawsuit.
You should contact either the California Department of Fair Employment and Housing (DFEH), which is the state agency that investigates retaliation complaints related to discrimination or harassment, or the Equal Employment Opportunity Commission (EEOC), which is the federal equivalent of the DFEH that investigates retaliation related violations of federal civil rights law (Title VII) in employment. There are other agencies, such as the California Office of the Labor Commissioner, that investigate retaliation complaints related to whistle-blowing.
Do I need a lawyer?
If your complaint goes nowhere, you can still strike back in court. The complaint process, both within companies and through the federal and state agencies charged to investigate complaints, can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California state Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee's recovery may include his or her past lost wages and benefits, future wage loss, emotional distress damages, the attorney fees and punitive damages. Punitive damages are calculated in part on the earnings of the company.
Karine Bohbot is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. Ms. Bohbot received her J.D. from UC Hastings College of Law and has been practicing employment law for the last 11 years. She specializes in employment discrimination cases. She has successfully represented employees against a wide variety of businesses and government entities, in matters of race, national origin, sexual orientation, pregnancy, age, disability and gender discrimination, cases of sexual and racial harassment, retaliation, whistle-blowing and wrongful termination. Ms. Bohbot can help you strike back against discrimination in the workplace. For more information about Ms. Bohbot or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Bohbot at firstname.lastname@example.org.