What Workplace Retaliation is & Is Not in California
Legally reviewed by: Jessica Anvar Stotz, JD, MBA
What is Considered Retaliation in the Workplace in California?
In 2024, workplace retaliation in California refers to an employer taking adverse action against an employee for engaging in protected activities such as:
- Filing a complaint or claim against the employer (e.g. discrimination, harassment, labor violations)
- Requesting accommodation for a disability or medical condition
- Taking leave permitted under laws like the Family Medical Leave Act (FMLA)
- Refusing to participate in illegal activities
- Reporting violations or acting as a whistleblower
Adverse actions that may constitute illegal retaliation include:
- Termination or constructive discharge
- Demotion, cut in pay or hours
- Denial of promotion or transfer
- Unjustified negative evaluations or disciplinary actions
- Creation of a hostile work environment
It is unlawful for an employer to punish an employee for asserting their workplace rights protected under California and federal labor laws. Retaliation claims require showing the adverse action was motivated by the employee’s protected activity.
However, employers can still enforce legitimate workplace policies in a non-retaliatory manner for reasons unrelated to protected activities, such as poor performance issues. The key distinction is the action was retaliatory versus stemming from non-discriminatory business reasons.
Workplace Retaliation Evaluator
Take this short 90 second quiz to find out if you might have a viable workplace retaliation claim. Your quiz answers and case review are free of charge.
What Workplace Retaliation is Not in California
Here are some examples of what does NOT constitute illegal workplace retaliation under California law:
- Enforcing company policies consistently. Disciplining an employee for violating a workplace rule or policy that is applied evenhandedly is not retaliation, even if the employee previously engaged in protected activity.
- Terminating for legitimate business reasons. Firing an employee for valid, documented reasons like poor performance, misconduct, or economic necessity is allowed, as long as it is not actually pretext (excuse) for retaliation.
- Reassigning duties reasonably. Transferring an employee to a different role, location or shift that is lateral and not objectively disadvantageous may not be retaliatory.
- Giving critical feedback. Providing negative performance evaluations based on substantiated deficiencies in the employee’s work quality or productivity is permissible.
- Refusing optional requests. Denying an employee’s request for a promotion, raise or transfer that they are not entitled to receive is generally not retaliation.
- Managing difficult employees properly. Actions like enforcing attendance policies, blocking negativity or insubordination are allowed if not actually punishment for protected activities.
The key distinction is that the employer’s actions must be legitimately motivated by non-retaliatory, reasonable business purposes applied impartially, rather than being a pretext used to punish an employee for engaged in legally protected rights. Proper documentation of non-retaliatory reasons is important.
California Workplace Retaliation at a Glance
| 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. |
Your Rights as a Californian Explained in 90 Seconds
| Right | Description |
| 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. |
California Workplace Retaliation Statistics
Below is a quick glance at the workplace retaliation charges filed with the EEOC in California.
| Year | All Retaliation Charges | Retaliation Title VII charges |
| 2021 | 2158 | 1581 |
| 2022 | 2259 | 1756 |
Source: EEOC
California Workplace Retaliation Laws to Know
| Law | Description | Protection Areas |
| 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 |
How Title VII Affects Retaliation Claims in California
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.
Here’s how Title VII affects retaliation claims in California
Federal Protection
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.
California State Laws
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.
Expansive Protections
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.
Procedural Differences
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).
Dual Claims
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.
Retaliation in the Workplace Examples
Below are 25 workplace retaliation examples for Californians to be aware of:
- Firing an employee for reporting discrimination or harassment in the workplace
- Demoting an employee for taking time off to care for a sick family member
- Assigning an employee undesirable tasks or duties after they complain about their working conditions
- Refusing to provide an employee with necessary training or equipment after they report safety violations
- Refusing to consider an employee for a promotion or raise after they report unlawful behavior by a manager or supervisor
- Threatening an employee with termination or discipline for reporting harassment or discrimination
- Giving an employee a negative performance review after they report unlawful behavior in the workplace
- Cutting an employee’s hours or pay after they report safety violations or other unlawful behavior
- Excluding an employee from meetings or decision-making processes after they report unlawful behavior
- Dismissing an employee’s ideas or opinions after they report harassment or discrimination
- Isolating an employee from their colleagues or team after they report unlawful behavior
- Refusing to provide an employee with necessary accommodations for a disability after they report harassment or discrimination
- Making derogatory or offensive comments about an employee after they report unlawful behavior
- Giving an employee a poor reference or badmouthing them to potential employers after they report unlawful behavior
- Refusing to provide an employee with a reference or recommendation after they report unlawful behavior
- Making an employee’s work environment hostile or intimidating after they report unlawful behavior
- Denying an employee overtime or other benefits after they report harassment or discrimination
- Refusing to hire an employee because they previously reported unlawful behavior at another company
- Retaliating against an employee for participating in a union or other protected activity
- Taking disciplinary action against an employee for using their legally protected leave or requesting accommodation for a disability
- Refusing to promote an employee because of their age, race, gender, or other protected characteristic
- Denying an employee a transfer or lateral move after they reported harassment or discrimination
- Refusing to allow an employee to work from home or have a flexible schedule after they report unlawful behavior
- Sabotaging an employee’s work or project after they report unlawful behavior
- Falsely accusing an employee of wrongdoing or misconduct after they report harassment or discrimination.
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.
What Are the Elements of Retaliation in California?
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:
- Protected Activity: The employee must have engaged in a protected activity. This can include reporting violations of laws, asserting rights under employment laws (such as filing a discrimination complaint), participating in investigations, or opposing unlawful practices.
- Adverse Action: There must be an adverse employment action taken by the employer. This can include termination, demotion, suspension, pay reduction, unfavorable changes in working conditions, harassment, or other negative treatment that could dissuade a reasonable employee from engaging in the protected activity.
- Causation: There must be a causal link between the protected activity and the adverse action. In other words, the employer’s action must be a direct response to the employee’s engagement in the protected activity.
- Knowledge: It’s often a requirement that the employer knew about the protected activity. This means the employer was aware that the employee engaged in the activity before taking the adverse action.
- Pretext: The employee may need to demonstrate that the stated reason for the adverse action is pretextual, meaning it’s not the real reason but a cover-up for the retaliatory intent.
- Comparable Employees: In some cases, the employee may need to show that other employees who did not engage in the protected activity were receiving more favorable treatment in similar situations.
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.
Who Can Cause Workplace Retaliation in California?
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:
- Employers: Employers, including business owners and company executives, may have involvement in making decisions that lead to retaliation if they take adverse actions against employees for engaging in protected activities, such as reporting discrimination or harassment, filing complaints, or asserting their rights.
- Managers and Supervisors: Individuals with supervisory or managerial roles within an organization may be responsible for implementing decisions in relation to employee actions. If they engage in retaliation, it can have a significant impact on the affected employees.
- Coworkers: Retaliation can also come from coworkers who may harbor ill will or engage in harmful behavior in response to an employee’s protected activity, such as reporting workplace violations.
- Human Resources (HR) Personnel: While HR professionals are typically responsible for ensuring compliance with employment laws, there have been cases where HR personnel have involvement in decisions leading to retaliation. It’s essential for HR to be knowledgeable about anti-retaliation laws and to promote a culture of fairness.
- Third Parties: In some cases, third parties, such as clients, customers, or vendors, can engage in retaliation against employees, and the employer may have a duty to address and prevent such behavior.
- Contractors or Temp Agencies: If an organization uses contractors, temporary workers, or staffing agencies, there may be situations where individuals associated with these entities could cause or have involvement in retaliation.
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.
How do I prove workplace retaliation in California?
To prove workplace retaliation in California, you must be able to show that:
- You engaged in a protected activity: This can include reporting or opposing unlawful behavior, filing a complaint, participating in an investigation or hearing, or advocating for your rights or the rights of others in the workplace.
- Your employer took an adverse action against you: Adverse actions 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 your employment.
- There was a causal connection between your protected activity and the adverse action: You must be able to show that your employer took the adverse action against you because you engaged in the protected activity. This can be shown through direct evidence (e.g. an email or witness testimony) or circumstantial evidence (e.g. timing of the adverse action).
- You suffered damages as a result of the retaliation: Damages can include back pay, lost benefits, emotional distress, and punitive damages.
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.
How Do I File a Workplace Retaliation Complaint in California?
To file a workplace retaliation complaint in California, you can follow these general steps:
- Understand Your Rights: Familiarize yourself with the specific protected activities and retaliation prohibitions under California law. Make sure you have a clear understanding of what constitutes retaliation.
- Document the Retaliation: Keep detailed records of the alleged retaliation incidents. Note dates, times, locations, people involved, any witnesses, and descriptions of the retaliatory actions.
- Consult with an Attorney: While not required, it’s highly recommended to consult with an employment law attorney. They can provide legal advice, assess the strength of your case, and guide you through the process.
- Contact the California Department of Fair Employment and Housing (DFEH): If you decide to proceed with a formal complaint, you can contact the DFEH, which is the state agency responsible for enforcing California’s employment laws. You can submit a complaint online or in person at a local DFEH office.
- Complete the Complaint Form: If you submit the complaint online or in person, you’ll need to complete the appropriate complaint form, providing detailed information about the retaliation you experienced.
- Include Supporting Documentation: Attach any relevant documentation, such as your records of the alleged retaliation, to support your complaint. This can strengthen your case.
- Submit the Complaint: File the completed complaint form and any supporting documentation with the DFEH. Be sure to retain copies for your records.
- Cooperate with the Investigation: If the DFEH decides to investigate your complaint, cooperate fully with their process. This may involve providing additional information, participating in interviews, and following their instructions.
- Await the Outcome: The DFEH will investigate the complaint and determine whether there is sufficient evidence of retaliation. They will notify you of the outcome.
- Consider Legal Action: If the DFEH determines there is reasonable cause to believe retaliation occurred but does not resolve the matter to your satisfaction, you may have the option to pursue legal action, possibly by filing a lawsuit with the help of your attorney.
Remember, the specifics of the process and requirements may vary due to certain circumstances and the involvement of particular laws .
What Should You Not Do When Trying to Prove Workplace Retaliation?
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:
- Do not retaliate against your employer: Retaliating against your employer or engaging in any misconduct yourself can harm your case and potentially result in disciplinary action against you.
- Do not engage in any activity that violates company policies or procedures: Engaging in conduct that violates company policies or procedures can undermine your credibility and give your employer a legitimate reason for taking adverse action against you.
- Don’t wait too long to take action: In California, there is a statute of limitations on filing retaliation claims, so it’s important to take action as soon as possible. Waiting too long to report the retaliation can make it harder to gather evidence and weaken your case.
- Do not ignore or fail to document evidence: Documentation is crucial in proving retaliation. It’s important to keep a record of any emails, performance evaluations, or other evidence that supports your claim. Ignoring or failing to document evidence can weaken your case.
- Don’t discuss your case with anyone who is not your attorney: Discussing your case with anyone who is not your attorney can harm your case and potentially waive your attorney-client privilege.
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.
Why Should Someone Hire a Workplace Retaliation Attorney?
There are several reasons why someone who is dealing with workplace retaliation in California should hire an experienced workplace retaliation attorney:
- Legal expertise: A workplace retaliation attorney has a deep understanding of California’s employment laws and can help you understand your legal rights and options. They can provide guidance and support throughout the process, including filing a complaint, negotiating a settlement, or pursuing legal action in court.
- Investigation: An attorney can conduct a thorough investigation into the facts surrounding the retaliation, gather evidence, and interview witnesses. They can help you build a strong case and provide advice on the best strategy to pursue.
- Negotiation: An experienced attorney can negotiate with your employer or their legal team to reach a settlement outside of court. They can help ensure that any settlement agreement is fair and includes the compensation you deserve.
- Representation in court: If necessary, an attorney can represent you in court and present a compelling case on your behalf. They can also handle all legal filings and proceedings, including depositions, discovery, and motions.
- Protection against retaliation: Hiring an attorney sends a clear message to your employer that you are serious about protecting your rights and taking action against retaliation. An attorney can also help protect you against any further retaliation by your employer during the legal process.
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.
Frequently Asked Questions
1. Is workplace retaliation illegal in California?
Yes, workplace retaliation is generally illegal in California under state and federal laws.
2. What types of actions are considered retaliatory in the workplace?
Retaliatory actions can include termination, demotion, harassment, or other negative treatment in response to protected activities.
3. Who is protected from workplace retaliation under California law?
Employees who engage in protected activities, such as reporting discrimination, participating in investigations, or asserting rights, are typically protected from retaliation.
4. Can I be retaliated against for reporting discrimination or harassment?
No, you should not face retaliation for reporting discrimination or harassment; California protects against such retaliation.
5. Can I be retaliated against for reporting health and safety violations?
No, you should not face retaliation for reporting health and safety violations; California protects against such retaliation.
6. What should I do if I believe I’m experiencing workplace 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.
7. What remedies are available to me if I prove retaliation?
If you can prove retaliation, remedies may include reinstatement, back pay, compensation for emotional distress, and other appropriate relief.
8. Can I be retaliated against for participating in a workplace investigation?
No, you should not face retaliation for participating in a workplace investigation; this is generally protected.
9. What protections do whistleblowers have in California?
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.
10. Can an employer retaliate if I request a reasonable accommodation for my disability?
No, an employer should not retaliate for requesting a reasonable accommodation; doing so could be a violation of California law.
11. Is there a statute of limitations for filing a retaliation claim in California?
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.
Get Connected With a Workplace Retaliation Lawyer Near You
The legal system can be extremely confusing for anyone to navigate. LawLinq connects victims of workplace retaliation with top rated attorneys for free.
There are many times where clients try to hire an attorney on their own and they end up making a bad decision. Our service connects you with some of the best workplace retaliation attorneys in the state at no cost. We do the homework so you don’t have to. Don’t get stuck on hold with a law firm’s front desk. Find out if you have a case today by calling LawLinq.
Additional Resources
