Updated on: 9/3/2023
Legally Reviewed by: Jessica Anvar Stotz, JD, MBA
Short answer: California law defines workplace retaliation as any adverse action taken by an employer against an employee because the employee engaged in legally protected activity.
Legally protected activity can include reporting or opposing unlawful behavior, filing a complaint, participating in an investigation or hearing, or advocating for their rights or the rights of others in the workplace.
The California Labor Code and various court decisions provide a broad definition of what constitutes adverse actions, which can include termination, demotion, pay reduction, negative performance evaluations, denial of promotions, or other forms of discrimination or harassment that negatively affect the terms or conditions of the employee’s employment.
It’s important to note that retaliation is illegal and employees have the right to report unlawful behavior without fear of retaliation. Employers who engage in retaliation can be held liable for damages, including back pay, lost benefits, emotional distress, and punitive damages.
|Element of Retaliation||California Definition|
|Protected Activities||Employees are protected when they engage in lawful activities such as reporting workplace violations, cooperating in investigations, or participating in protected activities (e.g., union activities).|
|Prohibited Actions||Employers cannot take adverse actions, like firing, demoting, or harassing employees, in response to their lawful activities or complaints.|
|Timing Matters||Retaliation can occur if adverse actions are taken shortly after an employee engages in protected activities, suggesting a causal connection.|
|Good Faith Complaints||Employees are protected when making good faith complaints or reports, even if the underlying claim is ultimately unfounded.|
|Remedies||If proven, remedies may include reinstatement, compensation for lost wages, and other appropriate relief.|
|Legal Basis||Retaliation is prohibited under various state and federal laws, including the California Fair Employment and Housing Act (FEHA) and federal anti-retaliation provisions.|
|Right to a Safe Workplace||Employees have the right to work in an environment free from harassment, discrimination, and retaliation.|
|Right to Report Wrongdoing||Employees can report workplace misconduct, safety violations, and unethical behavior without fear of retaliation.|
|Right to Whistleblower Protection||Whistleblowers are protected by federal and state laws when reporting illegal activities, fraud, or safety violations.|
|Right to File a Complaint||Employees can file formal complaints with their employer, HR department, or government agencies (such as the EEOC or OSHA).|
|Right to Participate in Investigations||Employees have the right to participate in investigations into their complaints without retaliation.|
|Right to Legal Representation||Employees can seek legal representation if they believe they have been retaliated against.|
|Right to Document Incidents||Keeping records of incidents, complaints, and responses can provide evidence in retaliation cases.|
|Right to Non-Retaliation Policies||Employers should have policies in place that prohibit retaliation and provide clear channels for reporting it.|
|Right to Anti-Retaliation Training||Some employers offer training on recognizing and preventing workplace retaliation.|
|Right to Be Informed of Legal Rights||Employees should be aware of their rights and the protections available to them.|
|Right to Pursue Legal Action||If retaliation continues, employees can take legal action, including filing lawsuits.|
|Right to Seek Damages and Remedies||Successful retaliation claims may result in compensation, reinstatement, or other remedies.|
|Right to Consult an Attorney||Employees can consult an attorney to assess their legal options and guide them through the process.|
|Right to File a Claim with Government||Employees can file claims with government agencies responsible for enforcing labor laws (e.g., EEOC, DOL).|
|Right to Confidentiality||Whistleblowers may have the right to keep their identity confidential during investigations.|
Below is a quick glance at the workplace retaliation charges filed with the EEOC in California.
|Year||All Retaliation Charges||Retaliation Title VII charges|
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|California Fair Employment and Housing Act (FEHA)||Prohibits retaliation against employees for asserting rights under the Act, including protection against discrimination, harassment, and retaliation based on protected characteristics.||Discrimination, Harassment, Retaliation|
|California Labor Code||Contains provisions protecting employees from retaliation in various employment contexts, such as reporting safety violations, wage claims, and protected leave.||Workplace Safety, Wage & Hour Claims, Protected Leave|
|California Whistleblower Protection Act||Protects public employees from retaliation for disclosing improper governmental activities (corruption, fraud, law violations).||Whistleblowing, Government Activities|
|California Occupational Safety and Health Act (Cal/OSHA)||Protects employees who report health and safety violations in the workplace from retaliation.||Workplace Safety, Health and Safety Violations|
|California Family Rights Act (CFRA)||Protects employees from retaliation for taking job-protected leave under CFRA for family-related reasons.||Family-Related Leave, Retaliation|
|California Workers’ Compensation Laws||Protects employees from retaliation for filing workers’ compensation claims.||Workers’ Compensation Claims, Retaliation|
|California False Claims Act||Provides protections for whistleblowers reporting false claims against the government, such as fraudulent billing.||Whistleblowing, False Claims against the Government|
|California Public Policy Exception||Recognizes a public policy exception to at-will employment, allowing employees to claim wrongful termination based on violations of fundamental public policy.||Public Policy Violations, Wrongful Termination, At-Will Employment|
|Federal Laws||Federal laws like Title VII of the Civil Rights Act and the Family and Medical Leave Act (FMLA) also provide protections against retaliation in the workplace.||Various, including discrimination, leave|
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination and harassment in the workplace on the basis of race, color, national origin, sex, and religion.
While Title VII is a federal law that applies across the United States, including California, California also has its own set of state laws that provide additional protections to employees. When it comes to retaliation claims in California, both federal and state laws come into play.
Title VII includes provisions that protect employees from retaliation for opposing discriminatory practices or participating in a complaint or investigation related to workplace discrimination or harassment. This means that if you engage in a protected activity, such as filing a complaint or supporting a coworker’s complaint, your employer cannot retaliate against you.
In California, state laws provide even broader protections against retaliation. The California Fair Employment and Housing Act (FEHA) is the primary state law that governs workplace discrimination and harassment.
FEHA not only prohibits retaliation for opposing discrimination but also extends protections to a broader range of characteristics, including age, disability, gender identity, and sexual orientation.
California’s state laws are often more expansive and protective than federal laws like Title VII. For example, FEHA covers a wider range of employers and provides more extensive remedies for employees who have faced retaliation.
While both federal and state laws protect against retaliation, the procedures for filing retaliation claims may differ between Title VII and California’s FEHA. Employees in California may have additional options and resources available to them through state agencies such as the California Department of Fair Employment and Housing (DFEH).
Employees in California often have the option to file both federal Title VII claims and state FEHA claims concurrently, allowing them to pursue remedies under both sets of laws.
Overall, Title VII sets a baseline of protections against retaliation in California, but state laws, particularly FEHA, provide additional and often stronger protections for employees.
If you believe you have been subjected to retaliation in the workplace in California, it is essential to consult with an employment attorney who can help you navigate the complexities of both federal and state laws and guide you through the appropriate legal process.
Below are 25 workplace retaliation examples for Californians to be aware of:
These are just a few examples of the various ways that retaliation can occur in the workplace. It’s important to note that retaliation is illegal and employees have the right to report unlawful behavior without fear of retaliation.
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To establish a claim of retaliation under California law, Californians need to several elements. While the exact elements may vary based on the specific statute or law being invoked, a general framework typically includes the following:
These elements may vary due to the specific law or regulation in use in a retaliation claim. For example, retaliation claims under the California Fair Employment and Housing Act (FEHA) may have additional requirements specific to discrimination or harassment claims.
Various individuals within an organization can cause workplace retaliation in California, including employers, managers, supervisors, coworkers, or any person with authority or control over the terms and conditions of employment.
It’s important to note that retaliation can occur both in the context of employment-related actions (such as termination, demotion, or denial of benefits) and in the form of hostile work environment or other adverse treatment.
Here are some potential actors who can cause workplace retaliation in California:
It’s crucial for employers to have clear anti-retaliation policies and procedures in place, train their employees and managers on these policies, and take appropriate action to prevent and address any instances of retaliation.
To prove workplace retaliation in California, you must be able to show that:
To prove workplace retaliation, it’s important to document any evidence that supports your claim, including emails, witness testimony, performance evaluations, and any other relevant documentation. It’s also recommended that you consult with an experienced employment attorney who can provide guidance and representation throughout the process.
To file a workplace retaliation complaint in California, you can follow these general steps:
Remember, the specifics of the process and requirements may vary due to certain circumstances and the involvement of particular laws .
When trying to prove workplace retaliation, there are several things you should avoid doing, as they could negatively impact your case. Here are some things you should not do:
Overall, it’s important to approach the situation with professionalism and to seek legal advice from an experienced employment attorney who can guide you through the process of proving workplace retaliation.
There are several reasons why someone who is dealing with workplace retaliation in California should hire an experienced workplace retaliation attorney:
Overall, hiring an experienced workplace retaliation attorney can help you navigate a complex legal process and ensure that you receive the compensation and justice you deserve.
Yes, workplace retaliation is generally illegal in California under state and federal laws.
Retaliatory actions can include termination, demotion, harassment, or other negative treatment in response to protected activities.
Employees who engage in protected activities, such as reporting discrimination, participating in investigations, or asserting rights, are typically protected from retaliation.
No, you should not face retaliation for reporting discrimination or harassment; California protects against such retaliation.
No, you should not face retaliation for reporting health and safety violations; California protects against such retaliation.
If you believe you’re experiencing workplace retaliation, document the incidents and consult with an employment law attorney for guidance on your next steps.
If you can prove retaliation, remedies may include reinstatement, back pay, compensation for emotional distress, and other appropriate relief.
No, you should not face retaliation for participating in a workplace investigation; this is generally protected.
California Whistleblower Protection Act (CWPA): The California Whistleblower Protection Act specifically protects public employees from retaliation when they disclose improper governmental activities, such as corruption, fraud, or violations of law.
No, an employer should not retaliate for requesting a reasonable accommodation; doing so could be a violation of California law.
There’s typically a statute of limitations for filing a retaliation claim, but the time limit may vary depending on the specific circumstances and the law under which you’re filing.
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