1. A Division of Thompson Media Group
Preventing Workplace
Retaliation Claims

2. The Bottom Line Session Goals
Understand what retaliation is and is not
Identify subtle workplace risks
Proactive Employer
Prevention tips, tools and strategies

3. The High Cost… Compensatory damages Punitive damages
Personal liability in some jurisdictions
Reinstatement
Injunctive relief
Litigation costs
Attorneys’ Fees
Morale and Turnover
Bad press
Ms. DeMichele complained that Tony Martin, the Chairman of Select Appointments North America, Inc. and Chairman of Select Appointment’s indirect parent company, Vedior, NV, had sexually harassed her by publicly propositioning her at a meeting of company executives. Following her complaint, the company terminated Ms. DeMichele and also filed a lawsuit against her. Ms. DeMichele counterclaimed for breach of contract and retaliation.
The jury returned a verdict in Ms. DeMichele’s favor, granting her $666,000 in compensatory damages on her contract and retaliation claims. In addition, the jury awarded punitive damages in the amount of $1.5 million on the claim of retaliation, believed to be one of the largest punitive damages award for retaliation in Massachusetts. The jury dismissed all of the company’s claims against Ms. DeMichele. Ms. DeMichele will also be entitled to interest and her legal fees. It is expected that the overall award will be in excess of $3 million.
Zubulake against UBS Warburg
. A jury awarded her over $29 million in damages.

4. The High Cost… Relatively easy cases to prove
Two shots to win a weak case
No need to prove underlying discrimination
Very broad protection

5. Some of the Laws… Title VII 42 U.S.C. §1981
Age Discrimination in Employment Act (federal and non-federal sector provisions)
Americans with Disabilities Act
Family & Medical Leave Act
National Labor Relations Act
Fair Labor Standards Act
OSHA, EPA, ERISA, PDA, USERRA
State and local laws

6. Example of State Law
California Gov. Code §12940(h) makes it an unlawful employment practice
“for any employer…to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

7. More Ways to be Sued CBOCS West, Inc. v. Humphries (2008)
42 U.S.C. §1981 prohibits not only race discrimination but also permits retaliation claims even though the laws make no mention of a retaliation cause of action
Significance - §1981 vs. Title VII
§1981 has a longer statute of limitations – 4 years vs. 300 days for Title VII of the alleged discriminatory act
No limitations on punitive and pain and suffering damages
Plaintiff may file a lawsuit immediately, no exhaustion of administrative remedies

8. More Ways to be Sued Gómez-Pérez v. Potter (2008) 29 U.S.C. § 633a
ADEA’s federal sector provision now permits retaliation claims even though the law does not explicitly mention retaliation (unlike the private sector provision which does mention retaliation)

9. More Ways to be Sued
Kasten v. Saint-Gobain Perf. Plastics Corp., No , U.S. Supreme Court (3/22/11)
Plaintiff claimed he had been fired in retaliation for his verbal complaints regarding the location of the time clocks
Sole question before the high court was whether the term "filed any complaint" includes oral as well as written complaints
Held: oral complaints count!
This morning, with Justice Stephen Breyer writing for the 6-2 majority, the U.S. Supreme Court held that an employee may proceed with his retaliation lawsuit brought under the Fair Labor Standards Act (FLSA). According to the high court, the statutory term "filed any complaint" includes oral, as well as written, complaints. This ruling signals yet another expansion of the anti-retaliation laws. Kasten v. Saint-Gobain Performance Plastics Corp., No , U.S. Supreme Court (March 22, 2011).
Factual Background
Kevin Kasten was employed by Saint-Gobain Performance Plastics Corp. in Portage, Wisconsin. According to company policy, hourly employees must use a time card to swipe in and out of time clocks located in the plant.
During 2006, Kasten received three disciplinary notices (one verbal and two written) due to several "issues" he had with regard to punching in and out on the time clock. The third notice, which was issued in November 2006, was accompanied by a one-day suspension. In addition, Kasten was warned that "[t]his was the last step of the discipline process" and if another violation occurred, further discipline (including termination) could result. Kasten signed each notice, acknowledging that he read and understood it.
From October through December 2006, Kasten alleged that he verbally complained to supervisors about the location of the time clocks. According to Kasten, the location of the time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Saint-Gobain denied that Kasten complained to any of his supervisors about the time clock location.
On December 6, Saint-Gobain suspended Kasten based on his fourth violation of the company's timekeeping policy. Five days later, the company terminated his employment. Kasten then sued Saint-Gobain under the FLSA, claiming that he had been fired in retaliation for his verbal complaints regarding the location of the time clocks. The trial judge ruled in favor of the company and Kasten appealed. The Seventh Circuit Court of Appeals upheld the dismissal of Kasten's suit, finding that the FLSA's anti-retaliation provision does not cover oral complaints. The case ultimately reached the U.S. Supreme Court.
Legal Analysis
The FLSA includes an anti-retaliation provision that forbids employers "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act]." The sole question before the high court was whether the term "filed any complaint" includes oral as well as written complaints.
In writing for the majority, Justice Breyer first noted that the text of the statute alone cannot provide a conclusive answer because the word "filed" has different meanings in different contexts. The Court found that some dictionary definitions of the word contemplate a writing while others permit the use of the word "file" in conjunction with oral material. State statutes and federal regulations similarly contemplate oral complaints. "Even if the word 'filed,' considered alone, might suggest a narrow interpretation limited to writings," the majority wrote, "the phrase 'any complaint' suggests a broad interpretation that would include an oral complaint."
Given that the plain text of the FLSA's anti-retaliation provision leaves the oral/written question unresolved, the Court turned to Congress' intent in enacting the statute. According to the majority, several functional considerations indicate that Congress intended the statute to cover oral complaints. The Act seeks to prohibit "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." A narrow interpretation of the term "filed any complaint" would undermine this basic objective, the Court wrote. In reaching this conclusion, the majority noted: "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the Act's complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly the illiterate, less educated, or overworked workers who were most in need of the Act's help at the time of passage?"
The Court further held that the views of the federal administrative agencies that are delegated the right to enforce such laws as the FLSA should be given weight. The Secretary of Labor has held the view that the words "filed any complaint" cover oral and written complaints. Likewise, the Equal Employment Opportunity Commission has set forth a similar view in its Compliance Manual. The Court found that these agency views are not only reasonable but consistent with the Act.
Finally, the Court refused to consider the employer's argument that the FLSA's anti-retaliation provision applies only to complaints filed with the government. According to the majority, the company did not raise this issue in its certiorari briefs and its resolution is not a "predicate to an intelligent resolution" of the oral/written question. Thus, concluding that oral complaints should fall within the scope of the phrase "filed any complaint" in the FLSA's anti-retaliation provision, the Court returned Kasten's suit to the lower court to decide whether he would be able to satisfy the Act's notice requirement.
Practical Impact
According to Alfred B. Robinson, Jr., a shareholder in Ogletree Deakins' Washington, D.C. office who previously served as the acting Administrator of the Wage and Hour Division of the U.S. Department of Labor (DOL): "In this decision, the Supreme Court has clarified that a worker's oral complaints to his or her employer are protected by the anti-retaliation provision of the FLSA. In reviewing several factors including the statutory language, Congressional intent and the practices of the DOL, the Court struck a balance between the objectives of the FLSA to protect employees and to provide an enforcement mechanism that is fair to employers."
Robinson continued: "The impact of this decision should not be great because most employers already are attuned to complaints from employees that an employer is not in compliance with the law whether the employee complains in writing or orally. As the Court noted, a clear and detailed oral complaint to an employer is just as sufficient as a written complaint to place the employer on notice that an employee is asserting his or her rights under the FLSA and invoking the protections of the Act against retaliation. The next question, and perhaps better one, which the Court did not decide is whether such oral or written complaints should be filed with a government agency in order to invoke the anti-retaliation protection of the FLSA. In his dissent, Justice Antonin Scalia found that these anti-retaliation protections should not apply to complaints made by an employee to his or her employer." 9

10. Who is Protected? Applicant Current employees Former employees
Someone closely related to the complaining party
The U.S. Supreme Court has just handed employers one more reason to keep quiet when asked to give a job reference for a former employee. Charles Robinson sued Shell Oil Co. for race discrimination after he was fired. Later, when Shell gave him a negative reference, he filed a second lawsuit charging that the bad reference was illegal retaliation for filing the original discrimination suit. Shell contended that the federal job bias law, which bans retaliation against employees who make complaints, doesn't apply to former workers. But the high court disagreed and let Robinson's case go forward.8 In light of this decision, it's critical to avoid giving a negative reference, or taking any other action that could be viewed as retaliation, against a current-or former-employee who has made a discrimination complaint against you. In fact, although the court didn't address this point, to be absolutely safe, it's best not to even mention to prospective employers that an ex-employee has filed such a claim.

11. Who is Protected? Thompson v. North American Stainless, LP
(U.S. Supreme Court, 2011)
Harming a close colleague of a complainant may now constitute unlawful retaliation
Title VII extends protections to “persons aggrieved.” That term is broader than just the employee who engages in protected activity.
Court would not specify the types of relationships entitled to protection
Burlington standard reinforced
The U.S. Supreme Court has just handed employers one more reason to keep quiet when asked to give a job reference for a former employee. Charles Robinson sued Shell Oil Co. for race discrimination after he was fired. Later, when Shell gave him a negative reference, he filed a second lawsuit charging that the bad reference was illegal retaliation for filing the original discrimination suit. Shell contended that the federal job bias law, which bans retaliation against employees who make complaints, doesn't apply to former workers. But the high court disagreed and let Robinson's case go forward.8 In light of this decision, it's critical to avoid giving a negative reference, or taking any other action that could be viewed as retaliation, against a current-or former-employee who has made a discrimination complaint against you. In fact, although the court didn't address this point, to be absolutely safe, it's best not to even mention to prospective employers that an ex-employee has filed such a claim.

12. Federal Prima Facie Case
Plaintiff engaged in protected activity
Employer subjected the plaintiff to a materially adverse action
not limited to actions or harms that are related to employment or occur at the workplace
Causal link between the protected activity and the materially adverse action

13. Protected Activity: Opposition
Employee opposes unlawful practices
Employee must reasonably and in good faith believe the conduct is unlawful
Protection exists even if conduct is later found to not be discriminatory
Opposition must be reasonable: Must be reasonable in order for the anti-retaliation provisions to apply. The EEOC and Courts balance the right of individuals to oppose employment discrimination and the public’s interest in enforcement of the EEO laws against an employer’s need for a stable and productive work environment. Unprotected activities include: searching for an copying confidential documents relating to alleged discrimination and showing them to co-workers, bypassing the employer’s chain of command with an overwhelming number of unsupported claims, badgering a subordinate employee to give witness statements and coercing her to change her statement, acts or threats of violence to life or property, any activity that interferes with that employees job performance.
As the Seventh Circuit observed with regard to title VII, "[t]he mistake must, of course, be a sincere one; and presumably it must be reasonable ... for it seems unlikely that the framers of Title VII would have wanted to encourage the filing of utterly baseless charges by preventing employers from disciplining the employees who made them. But it is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case." (Rucker v. Higher Educational Aids Bd. (7th Cir. 1982) 669 F.2d 1179, 1182, italics added.)
What is critical to point out is that there is no qualification on who the individual doing the complaining may be or on the party to whom the complaint is made known
Reasonable and good faith belief: violation of the retaliation laws is found whether or not the challenged practice ultimately is found to be unlawful. Example: Employee complains that her supervisor failed to promote her because of her gender. Protected because good faith belief that discrimination occurred. Example: Same employee complains that she didn’t receive promotion when she knew position required a CPA license and she did not have one. Not protected opposition because she did not have a reasonable and good faith belief that she was rejected because of sex discrimination.
Others claiming retaliation: Title VII, ADEA, EPA and ADA prohibit retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights. Example: unlawful to retaliate against an employee because his son, who is also an employee, opposed unlawful discriminatory practices. Retaliation against a close relative of an individual who opposed discrimination can be challenged by both the individual who engaged in protected activity and the relative, where both are employees.
Retaliation in violation of the Americans with Disabilities Act (ADA) is not established unless the belief in illegality is reasonable and expressed.
Paul Talanda, a manager for Kentucky Fried Chicken (KFC), was told to move a counter employee, Dorothy Bellson, who was missing many teeth, to the kitchen, away from customers. Talanda refused because he thought it would be discriminatory, and he encouraged Bellson to file suit. When his supervisor received no explanation for his actions, he was terminated for insubordination. Talanda sued for retaliatory discharge under the ADA. The district court granted summary judgment in favor of KFC, holding Talanda’s belief unreasonable because Bellson wasn’t disabled—moving her to another position wasn’t an adverse employment action. Talanda’s refusal to explain his actions was also unreasonable. The court of appeals agreed; the U.S. Supreme Court denied review of the case. Missing teeth did not limit major life activity because Bellson assumed another position. Talanda never told anyone he felt Bellson’s move was discriminatory, so his termination was not retaliatory. Talanda vs. KFC National Management Co., 140 F.3d 1090 (7th Cir. 1998), cert. denied, U.S. Sup. Ct. 10/5/98.

14. Supremes Expand Opposition Clause
Crawford v. Metropolitan Govt of Nashville and Davidson County, Tennessee (2009)
protects an employee who speaks out about discrimination during an employer’s investigation into another employee’s complaint of discrimination from retaliation.
Participation has always been afforded more protection than the opposition clause. That is until the L’Oreal case.

15. Reasonable Opposition
Peaceful picketing
Threatening to file a complaint with state / federal agency
Informal or formal complaints to management
Requesting a reasonable accommodation
Disability or religious
Refusing to obey an order

16. UNreasonable Opposition
Violating legitimate company policies / rules
Refusing to perform work
Intentionally disrupting employer’s business
Interfering with business opportunities
Violent picketing
Not giving employer some notice that the conduct is unlawful
Badgering a co-worker to provide a witness statement and attempting to coerce her to change her statement
searching and photocopying confidential documents relating to alleged ADEA
discrimination and showing them to co-workers; making an overwhelming number of complaints
based on unsupported allegations and bypassing the chain of command in bringing the complaints;
and badgering a subordinate employee to give a witness statement in support of an EEOC charge and
attempting to coerce her to change her statement. Similarly, unlawful activities, such as acts or
threats of violence to life or property, are not protected. (from EEOC Guidance)

17. Reasonable Opposition?
Paul was told to move Dorothy, a counter employee, who was missing many teeth, to the kitchen, away from customers. Paul refused believing that moving Dorothy would be discriminatory. Paul was later terminated and later sued for retaliation.
The district court granted summary judgment in favor of KFC, holding Talanda’s belief unreasonable because Bellson wasn’t disabled—moving her to another position wasn’t an adverse employment action. Talanda’s refusal to explain his actions was also unreasonable. The court of appeals agreed; the U.S. Supreme Court denied review of the case. Missing teeth did not limit major life activity because Bellson assumed another position. Talanda never told anyone he felt Bellson’s move was discriminatory, so his termination was not retaliatory. Talanda vs. KFC National Management Co., 140 F.3d 1090 (7th Cir. 1998), cert. denied, U.S. Sup. Ct. 10/5/98
Opposition must be reasonable: Must be reasonable in order for the anti-retaliation provisions to apply. The EEOC and Courts balance the right of individuals to oppose employment discrimination and the public’s interest in enforcement of the EEO laws against an employer’s need for a stable and productive work environment. Unprotected activities include: searching for an copying confidential documents relating to alleged discrimination and showing them to co-workers, bypassing the employer’s chain of command with an overwhelming number of unsupported claims, badgering a subordinate employee to give witness statements and coercing her to change her statement, acts or threats of violence to life or property, any activity that interferes with that employees job performance.
As the Seventh Circuit observed with regard to title VII, "[t]he mistake must, of course, be a sincere one; and presumably it must be reasonable ... for it seems unlikely that the framers of Title VII would have wanted to encourage the filing of utterly baseless charges by preventing employers from disciplining the employees who made them. But it is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case." (Rucker v. Higher Educational Aids Bd. (7th Cir. 1982) 669 F.2d 1179, 1182, italics added.)
What is critical to point out is that there is no qualification on who the individual doing the complaining may be or on the party to whom the complaint is made known
Reasonable and good faith belief: violation of the retaliation laws is found whether or not the challenged practice ultimately is found to be unlawful. Example: Employee complains that her supervisor failed to promote her because of her gender. Protected because good faith belief that discrimination occurred. Example: Same employee complains that she didn’t receive promotion when she knew position required a CPA license and she did not have one. Not protected opposition because she did not have a reasonable and good faith belief that she was rejected because of sex discrimination.
Others claiming retaliation: Title VII, ADEA, EPA and ADA prohibit retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights. Example: unlawful to retaliate against an employee because his son, who is also an employee, opposed unlawful discriminatory practices. Retaliation against a close relative of an individual who opposed discrimination can be challenged by both the individual who engaged in protected activity and the relative, where both are employees.
Retaliation in violation of the Americans with Disabilities Act (ADA) is not established unless the belief in illegality is reasonable and expressed.

18. Reasonable Opposition?
Abby complains to her supervisor about graffiti in the workplace that is derogatory to women.
Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination. (See, e.g., Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995) 873 F. Supp. 547,  [*30]  (Garcia-Paz) [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act, even where employee acts out of "an unarticulated belief that the employer is discriminating on the basis of age ... unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant reasonably believes to be unlawful"].) Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, n7 such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. (See Garcia-Paz at p. 560 ["Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination"]; Booker v. Brown & Williamson Tobacco Co., (6th Cir. 1989) 879 F.2d 1304,  [*31]  [affirming district court's determination that an allegation of "ethnocism" was too vague to constitute protected opposition under Michigan's antidiscrimination statute].)
Yanowitz

19. Reasonable Opposition?
Graham complains he didn’t receive a promotion because of his disability.
Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination. (See, e.g., Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995) 873 F. Supp. 547,  [*30]  (Garcia-Paz) [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act, even where employee acts out of "an unarticulated belief that the employer is discriminating on the basis of age ... unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant reasonably believes to be unlawful"].) Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, n7 such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. (See Garcia-Paz at p. 560 ["Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination"]; Booker v. Brown & Williamson Tobacco Co., (6th Cir. 1989) 879 F.2d 1304,  [*31]  [affirming district court's determination that an allegation of "ethnocism" was too vague to constitute protected opposition under Michigan's antidiscrimination statute].)
Yanowitz 19
© copyright 2012 Employment Practices Specialists. All rights reserved.

20. Reasonable Opposition?
Graham complains he didn’t receive a promotion because of his disability.
The position required a law license and Graham did not have one.
Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination. (See, e.g., Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995) 873 F. Supp. 547,  [*30]  (Garcia-Paz) [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act, even where employee acts out of "an unarticulated belief that the employer is discriminating on the basis of age ... unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant reasonably believes to be unlawful"].) Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, n7 such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. (See Garcia-Paz at p. 560 ["Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination"]; Booker v. Brown & Williamson Tobacco Co., (6th Cir. 1989) 879 F.2d 1304,  [*31]  [affirming district court's determination that an allegation of "ethnocism" was too vague to constitute protected opposition under Michigan's antidiscrimination statute].)
Yanowitz

21. Beware of Vague Opposition
Employee does not have to explicitly inform employer of opposition to a particular practice
see Yanowitz v. L'Oreal USA, Inc., (2005) 36 Cal.4th 1028
Conduct alone can be opposition
Look at totality of circumstances
Read between the lines
Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination. (See, e.g., Garcia-Paz v. Swift Textiles, Inc. (D. Kan. 1995) 873 F. Supp. 547,  [*30]  (Garcia-Paz) [holding that employee who champions cause of older worker is not engaged in protected activity under the Age Discrimination in Employment Act, even where employee acts out of "an unarticulated belief that the employer is discriminating on the basis of age ... unless the activity in question advances beyond advocacy and into recognizable opposition to an employment practice that the claimant reasonably believes to be unlawful"].) Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, n7 such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. (See Garcia-Paz at p. 560 ["Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination"]; Booker v. Brown & Williamson Tobacco Co., (6th Cir. 1989) 879 F.2d 1304,  [*31]  [affirming district court's determination that an allegation of "ethnocism" was too vague to constitute protected opposition under Michigan's antidiscrimination statute].)
Yanowitz

22. Protected Activity: Participation
Employee
filed a charge, testified, assisted or participated in any manner in an investigation, proceeding, hearing or litigation
Protection exists regardless of the validity or reasonableness of the charge
Participation has always been afforded more protection than the opposition clause. That is until the L’Oreal case.

23. Protected Activity: Participation
Protection is very broad and extends to
someone so closely related to or associated with the person engaging in protected activity
protected activity with a different employer
And, unlawful retaliation isn't limited to getting even with an employee who complains about discrimination or harassment. In March, 2002 a federal appeals court held that a worker who was fired because his father sued their employer for discrimination had his own claim for retaliation.
Mr. Fogleman was a long-term employee of Mercy Hospital. So was his son, Greg. After he was offered a choice of a demotion or resignation, Mr. Fogelman resigned, and sued the hospital, alleging he had been pushed out due to his advancing age and the recent loss of sight in one eye. Mr. Fogleman and the hospital settled right before trial.
While his father's case was pending, Greg was fired by Mercy Hospital, allegedly for job-related reasons. Greg sued, claiming that the hospital had illegally retaliated against him because of his father's lawsuit. The appeals court found this was "a modern rendition of the age-old parable of a son being punished for the sins of his father," and held that if the hospital fired Greg because it thought he was helping his father with his lawsuit, that was illegal retaliation under state and federal law. Now Greg has to prove his claims at trial.

24. Protected Participation?
Brad worked for Big Paper Company. He testified in an employment discrimination case filed by a co-worker against the company. Brad honestly testified he had been involved in some of the alleged unlawful sexual harassment that was the basis for the lawsuit.
Big Paper Company fired Brad telling him his testimony was “damning” to the defense and he violated the company’s anti-harassment policy.
And, unlawful retaliation isn't limited to getting even with an employee who complains about discrimination or harassment. In March, 2002 a federal appeals court held that a worker who was fired because his father sued their employer for discrimination had his own claim for retaliation.
Mr. Fogleman was a long-term employee of Mercy Hospital. So was his son, Greg. After he was offered a choice of a demotion or resignation, Mr. Fogelman resigned, and sued the hospital, alleging he had been pushed out due to his advancing age and the recent loss of sight in one eye. Mr. Fogleman and the hospital settled right before trial.
While his father's case was pending, Greg was fired by Mercy Hospital, allegedly for job-related reasons. Greg sued, claiming that the hospital had illegally retaliated against him because of his father's lawsuit. The appeals court found this was "a modern rendition of the age-old parable of a son being punished for the sins of his father," and held that if the hospital fired Greg because it thought he was helping his father with his lawsuit, that was illegal retaliation under state and federal law. Now Greg has to prove his claims at trial.
An employer fired an employee who testified in an employment discrimination case filed by a coworker. The employee testified that he had been involved in some of the alleged unlawful activities, in this case sexual harassment. The employer fired the employee, commenting that his testimony was “damning” to the defense and that he no longer had a place at the company. This comment was direct evidence of retaliation. Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997).
Example: An employee who participated in an employer’s internal investigation of a charge was protected from retaliation because the internal investigation was undertaken in response to the EEOC’s notice of charge and the EEOC would be considering any evidence submitted by the employer resulting from its internal investigation. Clover v. Total System Services, 176 F.3d 1346 (11th Cir. 1999). 24

25. Materially Adverse Action.
Materially Adverse Action
Burlington Northern & Santa Fe Railway Co. v. White (2006) 126 S. Ct. 2405
“Employer actions that would have been materially adverse to a reasonable employee or job applicant."
Significant, not trivial
Objective standard
Reasonable person in plaintiff’s position, considering “all the circumstances”
While the Supreme Court adopted the “materiality test” over the “deterrence test” for purposes of a FEHA retaliation claim, the Supreme Court gave the concept of “materiality” an expansive reading. Borrowing from federal “harassment” law, the Supreme Court indicated that a “material impact” does not require that an employee suffer an economic detriment or psychological injury. While mere offensive utterances or petty social slights are not actionable, the Supreme Court held that FEHA’s anti-retaliation language protects employees from “the entire spectrum of employment
actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” Further, noting that there is no requirement that an employer’s retaliation “constitute one swift blow, rather than a series of subtle, yet damaging, injuries,” the Supreme Court went on to hold that the proper approach was not to look at each alleged retaliation action individually to see if it meets the “materiality” standard. Rather, courts
should look at the totality of the employer’s actions to see if they collectively rise to the level
of having a material impact on the employee. In the case before it, the Supreme Court concluded
that Yanowitz’ allegations that she was subjected to increased unwarranted criticism and attempts
to undermine her effectiveness raised a triable issue that she had been subjected to materially
adverse employment actions.
In California, however, a mere oral or written criticism of an employee does not meet the definition of an adverse employment action under FEHA (Akers, supra, 95 Cal.App.4th at p & fn. 4.)

26. Materially Adverse Action
Actions that
would discourage a reasonable employee from making or supporting a complaint
are not limited to affecting the terms and conditions of employment
Once the plaintiff has shown that they engaged in some protected activity they must show that they were subject to some type of adverse employment action. Now, this particular element of a retaliation claim causes much controversy among the courts. Courts tend to struggle with knowing exactly how adverse must the employment action be, and how much impact, if any, must the adverse action have on the individual’s employment in order to be actionable?? Answers are not easy because retaliatory actions are as varied as the human imagination will permit.
TheBurlington Court’s decision effectively creates even more confusion for employers and naturally enhances their vulnerability to retaliation claims. The Supreme Court does little to provide much in the way of helpful guidance in identifying the kinds of employer actions that would be unrelated to the employee’s employment but are nevertheless actionable under Title VII’s anti-retaliation provision. In its discussion of the issue, the Supreme Court cites to two federal appellate court cases. In the first case, an FBI agent who, after having filed a race discrimination claim, suffered retaliation at the hands of the agency when it refused to investigate death threats that were made by an inmate against the plaintiff and his wife. The second case cited by the Court involved an employer who filed criminal charges against a former employee who had complained about discrimination.
There are also subtle ways that adverse action can take place - what if a manager always asks certain employees to lunch. They have a standing routine. Then, one employee files a charge of discrimination and slowly they are excluded from the lunches - is that enough for retaliation? Could be certainly if they talk about business. What if you excluded someone from meeting and it was harder for them to do their job? Yes. What if you place someone under surveillance who filed a race discrimination claim? You just wanted to make sure that they were not making up their claim - is that enough for retaliation? Yes.
What if an employee had received outstanding evaluations for two years and after filing a complaint, the evaluations were lowered to very good - is that enough? No, not a significant change because that kind of review would not likely make someone feel like they were in imminent danger of being fired, demoted or transferred simply because their supervisor thought they were only very good.
The EEOC, however, finds these terms “unduly restrictive.” The EEOc guidelines allows EEOC investigators to scrutinize any conduct/adverse treatment that is reasonably likely to deter the individual or others from engaging in protected activity, regardless of the harm to that employee. So, threats, reprimands, negative performance evaluations, harassment and other adverse treatment may now be considered unlawful retaliation. > includes threats, harassment
Important to note that changes in employment conditions that result merely in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute an adverse employment action for purposes of establishing a claim of retaliation. Example: being excluded from meetings in and of itself might not be retaliatory, but if it prevents employee from doing job and they were always included prior to protected activity - could establish a prima facie case of retaliation.
Changes in employment that result merely in inconvenience or an alteration of job responsibilities – not adverse

27. Materially Adverse Action
The anti-retaliation provision of Title VII
“extends beyond workplace-related or employment-related retaliatory acts and harm”
Once the plaintiff has shown that they engaged in some protected activity they must show that they were subject to some type of adverse employment action. Now, this particular element of a retaliation claim causes much controversy among the courts. Courts tend to struggle with knowing exactly how adverse must the employment action be, and how much impact, if any, must the adverse action have on the individual’s employment in order to be actionable?? Answers are not easy because retaliatory actions are as varied as the human imagination will permit.
TheBurlington Court’s decision effectively creates even more confusion for employers and naturally enhances their vulnerability to retaliation claims. The Supreme Court does little to provide much in the way of helpful guidance in identifying the kinds of employer actions that would be unrelated to the employee’s employment but are nevertheless actionable under Title VII’s anti-retaliation provision. In its discussion of the issue, the Supreme Court cites to two federal appellate court cases. In the first case, an FBI agent who, after having filed a race discrimination claim, suffered retaliation at the hands of the agency when it refused to investigate death threats that were made by an inmate against the plaintiff and his wife. The second case cited by the Court involved an employer who filed criminal charges against a former employee who had complained about discrimination.
There are also subtle ways that adverse action can take place - what if a manager always asks certain employees to lunch. They have a standing routine. Then, one employee files a charge of discrimination and slowly they are excluded from the lunches - is that enough for retaliation? Could be certainly if they talk about business. What if you excluded someone from meeting and it was harder for them to do their job? Yes. What if you place someone under surveillance who filed a race discrimination claim? You just wanted to make sure that they were not making up their claim - is that enough for retaliation? Yes.
What if an employee had received outstanding evaluations for two years and after filing a complaint, the evaluations were lowered to very good - is that enough? No, not a significant change because that kind of review would not likely make someone feel like they were in imminent danger of being fired, demoted or transferred simply because their supervisor thought they were only very good.
The EEOC, however, finds these terms “unduly restrictive.” The EEOc guidelines allows EEOC investigators to scrutinize any conduct/adverse treatment that is reasonably likely to deter the individual or others from engaging in protected activity, regardless of the harm to that employee. So, threats, reprimands, negative performance evaluations, harassment and other adverse treatment may now be considered unlawful retaliation. > includes threats, harassment
Important to note that changes in employment conditions that result merely in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute an adverse employment action for purposes of establishing a claim of retaliation. Example: being excluded from meetings in and of itself might not be retaliatory, but if it prevents employee from doing job and they were always included prior to protected activity - could establish a prima facie case of retaliation.
Changes in employment that result merely in inconvenience or an alteration of job responsibilities – not adverse

28. Materially Adverse Action
Refusal to hire
Denial of job benefits
Denial of promotion
Demotion
Suspension
Reprimands
Negative job reference
Termination
Once the plaintiff has shown that they engaged in some protected activity they must show that they were subject to some type of adverse employment action. Now, this particular element of a retaliation claim causes much controversy among the courts. Courts tend to struggle with knowing exactly how adverse must the employment action be, and how much impact, if any, must the adverse action have on the individual’s employment in order to be actionable?? Answers are not easy because retaliatory actions are as varied as the human imagination will permit.
TheBurlington Court’s decision effectively creates even more confusion for employers and naturally enhances their vulnerability to retaliation claims. The Supreme Court does little to provide much in the way of helpful guidance in identifying the kinds of employer actions that would be unrelated to the employee’s employment but are nevertheless actionable under Title VII’s anti-retaliation provision. In its discussion of the issue, the Supreme Court cites to two federal appellate court cases. In the first case, an FBI agent who, after having filed a race discrimination claim, suffered retaliation at the hands of the agency when it refused to investigate death threats that were made by an inmate against the plaintiff and his wife. The second case cited by the Court involved an employer who filed criminal charges against a former employee who had complained about discrimination.
There are also subtle ways that adverse action can take place - what if a manager always asks certain employees to lunch. They have a standing routine. Then, one employee files a charge of discrimination and slowly they are excluded from the lunches - is that enough for retaliation? Could be certainly if they talk about business. What if you excluded someone from meeting and it was harder for them to do their job? Yes. What if you place someone under surveillance who filed a race discrimination claim? You just wanted to make sure that they were not making up their claim - is that enough for retaliation? Yes.
What if an employee had received outstanding evaluations for two years and after filing a complaint, the evaluations were lowered to very good - is that enough? No, not a significant change because that kind of review would not likely make someone feel like they were in imminent danger of being fired, demoted or transferred simply because their supervisor thought they were only very good.
The EEOC, however, finds these terms “unduly restrictive.” The EEOc guidelines allows EEOC investigators to scrutinize any conduct/adverse treatment that is reasonably likely to deter the individual or others from engaging in protected activity, regardless of the harm to that employee. So, threats, reprimands, negative performance evaluations, harassment and other adverse treatment may now be considered unlawful retaliation. > includes threats, harassment
Important to note that changes in employment conditions that result merely in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute an adverse employment action for purposes of establishing a claim of retaliation. Example: being excluded from meetings in and of itself might not be retaliatory, but if it prevents employee from doing job and they were always included prior to protected activity - could establish a prima facie case of retaliation.
Changes in employment that result merely in inconvenience or an alteration of job responsibilities – not adverse

29. Materially Adverse Action
Threats
Negative evaluations
Harassment
Solicitation of negative comments
Refusing to give employee opportunity to respond to adverse employment action
We agree that HN8 a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA. (See Grube v. Lau Industries, Inc. (7th Cir. 2001) 257 F.3d 723, ; Phillips v. Collings (8th Cir. 2001) 256 F.3d 843, 848; Spears v. Mo. Dept. of Corr. & Human Resources, supra, 210 F.3d 850; Smart v. Ball University, supra, 89 F.3d at p. 442.) n4 But, as County recognizes, the issue requires a factual inquiry and  [**614]  depends on the employer's other actions. An unfavorable employee evaluation may be actionable where the employee proves the "employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the [***32]  recipient's employment." ( Spears v. Mo. Dept. of Corr. & Human Resources, supra, 210 F.3d at p. 854; accord, Lucas v. W.W. Grainger, Inc. (11th Cir. 2001) 257 F.3d 1249, 1261; Merriweather v. Alabama Dept. of Public Safety (M.D.Ala. 1998) 17 F. Supp.2d 1260, 1275.) Thus, although written criticisms alone are inadequate to support a retaliation claim, where the employer wrongfully uses the negative evaluation to substantially and materially change the terms and conditions of employment, this conduct is actionable.
This does not mean that negative employment evaluations cannot be considered in deciding whether an employee has been subjected to an adverse employment action. HN8 A pattern of negative employment evaluations, or a negative employment evaluation accompanied by other conduct, might create a hostile work environment, providing grounds for a retaliation claim on that basis. In addition, adverse employment actions such as terminations, demotions, etc., may be based in part on unwarranted criticism. In such cases,  [***22]  the fact that the criticism is unwarranted will be a factor in deciding if the employer's motive for the adverse action is pretextual, but it is the later action, and not the criticism itself, that is the adverse employment action. McRae

30. Materially Adverse Action
Loading an employee down with
additional work
Subjecting employee to extra
scrutiny in response to a complaint
Once the plaintiff has shown that they engaged in some protected activity they must show that they were subject to some type of adverse employment action. Now, this particular element of a retaliation claim causes much controversy among the courts. Courts tend to struggle with knowing exactly how adverse must the employment action be, and how much impact, if any, must the adverse action have on the individual’s employment in order to be actionable?? Answers are not easy because retaliatory actions are as varied as the human imagination will permit. In general, courts have held that retaliatory conduct must materially affect the terms and conditions of employment. Meaning, the negative action must only impair or potentially impart the plaintiff's current of future employment in cognizable manner. So, it doesn’t have to be an ultimate decision such as termination, but can come up in a variety of ways.
There are also subtle ways that adverse action can take place - what if a manager always asks certain employees to lunch. They have a standing routine. Then, one employee files a charge of discrimination and slowly they are excluded from the lunches - is that enough for retaliation? Could be certainly if they talk about business. What if you excluded someone from meeting and it was harder for them to do their job? Yes. What if you place someone under surveillance who filed a race discrimination claim? You just wanted to make sure that they were not making up their claim - is that enough for retaliation? Yes.
What if an employee had received outstanding evaluations for two years and after filing a complaint, the evaluations were lowered to very good - is that enough? No, not a significant change because that kind of review would not likely make someone feel like they were in imminent danger of being fired, demoted or transferred simply because their supervisor thought they were only very good.
The EEOC, however, finds these terms “unduly restrictive.” The EEOc guidelines allows EEOC investigators to scrutinize any conduct/adverse treatment that is reasonably likely to deter the individual or others from engaging in protected activity, regardless of the harm to that employee. So, threats, reprimands, negative performance evaluations, harassment and other adverse treatment may now be considered unlawful retaliation. > includes threats, harassment
Important to note that changes in employment conditions that result merely in inconvenience or an alteration of job responsibilities are not disruptive enough to constitute an adverse employment action for purposes of establishing a claim of retaliation. Example: being excluded from meetings in and of itself might not be retaliatory, but if it prevents employee from doing job and they were always included prior to protected activity - could establish a prima facie case of retaliation.
Changes in employment that result merely in inconvenience or an alteration of job responsibilities – not adverse

31. Typically Not - Materially Adverse Action
Petty slights and minor annoyances
Lack of good manners
Feeling frightened and humiliated
Embarrassed
Mere ostracism
Negative performance evaluation
Changes in employment resulting in inconvenience or an alteration of job responsibilities
Caveat: view each of these in
light of the totality of circumstances and
the reasonable employee standard

32. Materially Adverse Action?
Chrissie was allowed to work a flex-time schedule of 7 a.m. to 3 p.m. so she could care for her developmentally disabled son. Some of her duties were reassigned to others and she filed a charge of race discrimination based on that fact.
Soon after, her employer rescinded her flex-time schedule and eliminated her position. She was assigned to a 9-to-5 position, and her flex-time request was denied.
The 7th U.S. Circuit Court of Appeals has held that a claim of retaliation under Title VII of the Civil Rights Act of 1964 need not entail an “adverse employment action” but that the employer’s alleged retaliatory acts must be “material.” Accordingly, a forced schedule change that kept an employee from caring for her disabled child may be sufficient to support a retaliation claim.
For 16 years, Chrissie Washington—who held what would normally have been a 9-to-5 secretarial position—was allowed to work a flex-time schedule of 7 a.m. to 3 p.m. so she could care for her developmentally disabled son when he returned from school each day.
During the latter period of her employment, certain of Washington’s duties were reassigned to others and, in 1999, she filed a charge of race discrimination based on that fact.
Following Washington’s race discrimination charge, the state rescinded her flex-time schedule and eliminated her position. She was assigned to another 9-to-5 position, and was required to reapply for flex-time. Her flex-time request was denied, and Washington was compelled to use sick and vacation time, and unpaid leave to accommodate her son’s care.
Washington claimed that the change in employment position was in retaliation for her original charge of race discrimination. The lower court dismissed her claim, finding that a change in work hours, while salary and duties remain the same, is not an “adverse employment action” sufficient to support a claim of retaliation.
The 7th Circuit reversed, saying that Title VII’s retaliation prohibition is “broader” than its discrimination prohibition “in the sense that retaliation may take so many forms” while “discrimination” is limited to acts that affect the employee’s “compensation, terms, conditions, or privileges of employment. … .This is why we said in … similar decisions that retaliation need not entail an adverse employment action.”
Retaliation may take the form of acts outside the workplace—for instance the employer’s hiring a private detective to “search for a disreputable tidbit that could be used to intimidate her into withdrawing the complaint,” the court said. But it resisted the idea that “federal law regulates matters of attitude or other small affairs of daily life” and noted that not every imagined slight is a cause of litigation.
Therefore, the requirement that the employer’s acts be “material”—that is, severe or pervasive—applies not only to discrimination but also to retaliation, “whether the supposedly retaliatory acts occur in or out of the workplace,” the court said.
Taking all of this into account, the court found that requiring Washington to work a 9-to-5 schedule was a materially adverse change for her, even though it may not have been for the majority of other staff. The practical effect of the change reduced her wages, since she was forced to use up sick and vacation time, and ultimately to take an unpaid leave. Although the circumstances were sufficient to allow Washington’s case to go to a jury, the employer would have the opportunity to assert legitimate business reasons for its actions, if any existed.
Washington v. Illinois Dept. of Revenue, 7th Cir., No , Aug. 22, Professional Pointer: While “life’s little reversals” generally do not support a claim of retaliation, courts may view actions that adversely affect a person’s ability to do a job—even if the effect extends to circumstances outside of the workplace—as support for a retaliation.claim.

33. Materially Adverse Action?
Dory filed a claim for sexual harassment. Her performance rating at her next review was lowered from “excellent” to “very good.”
Example 1 - CP filed a charge alleging that he was racially harassed by his
supervisor and co-workers. After learning about the charge, CP’s manager asked
two employees to keep CP under surveillance and report back about his activities.
The surveillance constitutes an “adverse action” that is likely to deter protected
activity, and is unlawful if it was conducted because of CP’s protected activity.
Example 2 - CP filed a charge alleging that she was denied a promotion because
of her gender. One week later, her supervisor invited a few employees out to
lunch. CP believed that the reason he excluded her was because of her EEOC
charge. Even if the supervisor chose not to invite CP because of her charge, this
would not constitute unlawful retaliation because it is not reasonably likely to
deter protected activity.
Example 3 - Same as Example 2, except that CP’s supervisor invites all
employees in CP’s unit to regular weekly lunches. The supervisor excluded CP
from these lunches after she filed the sex discrimination charge. If CP was
excluded because of her charge, this would constitute unlawful retaliation since
it could reasonably deter CP or others from engaging in protected activity.

34. Materially Adverse Action?
Barney filed a charge alleging he was denied a promotion because of his national origin. One week later, his supervisor invited a few employees out to lunch. Barney believed the reason his boss excluded him was because of his national origin charge.
Example 1 - CP filed a charge alleging that he was racially harassed by his
supervisor and co-workers. After learning about the charge, CP’s manager asked
two employees to keep CP under surveillance and report back about his activities.
The surveillance constitutes an “adverse action” that is likely to deter protected
activity, and is unlawful if it was conducted because of CP’s protected activity.
Example 2 - CP filed a charge alleging that she was denied a promotion because
of her gender. One week later, her supervisor invited a few employees out to
lunch. CP believed that the reason he excluded her was because of her EEOC
charge. Even if the supervisor chose not to invite CP because of her charge, this
would not constitute unlawful retaliation because it is not reasonably likely to
deter protected activity.
Example 3 - Same as Example 2, except that CP’s supervisor invites all
employees in CP’s unit to regular weekly lunches. The supervisor excluded CP
from these lunches after she filed the sex discrimination charge. If CP was
excluded because of her charge, this would constitute unlawful retaliation since
it could reasonably deter CP or others from engaging in protected activity.

35. Materially Adverse Action?
Same facts, but beginning one week later, Barney’s supervisor begins inviting all of the employees in the department, except for Barney, out for weekly lunch meetings.
Example 1 - CP filed a charge alleging that he was racially harassed by his
supervisor and co-workers. After learning about the charge, CP’s manager asked
two employees to keep CP under surveillance and report back about his activities.
The surveillance constitutes an “adverse action” that is likely to deter protected
activity, and is unlawful if it was conducted because of CP’s protected activity.
Example 2 - CP filed a charge alleging that she was denied a promotion because
of her gender. One week later, her supervisor invited a few employees out to
lunch. CP believed that the reason he excluded her was because of her EEOC
charge. Even if the supervisor chose not to invite CP because of her charge, this
would not constitute unlawful retaliation because it is not reasonably likely to
deter protected activity.
Example 3 - Same as Example 2, except that CP’s supervisor invites all
employees in CP’s unit to regular weekly lunches. The supervisor excluded CP
from these lunches after she filed the sex discrimination charge. If CP was
excluded because of her charge, this would constitute unlawful retaliation since
it could reasonably deter CP or others from engaging in protected activity.

36. Causal Link Break the link! Beware of Timing
Identity of the person making the decision
Terminated employee's job performance before termination

37. Employer’s Defense/Burden
Employer had a legitimate, non-retaliatory reason for the employment decision
Make sure all significant contributors to the decision had legitimate non-discriminatory motives
In responding to the employer's showing of a legitimate reason for the complained-of action, the plaintiff cannot " 'simply show the employer's decision was wrong, mistaken, or unwise. Rather, the employee ' "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder  [**920]  could rationally find them "unworthy of credence," [citation], and hence infer "that the employer did not act for the [...  [*791]  asserted] non-discriminatory reasons." [Citations.]" [Citation.]" ' " (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 75.) "The ultimate burden of persuasion on the issue [***17]  of actual discrimination remains with the plaintiff." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].)
In California, however, a mere oral or written criticism of an employee does not meet the definition of an adverse employment action under FEHA (Akers, supra, 95 Cal.App.4th at p & fn. 4.)

38. Beware of Retaliatory Harassment
Majority of federal courts hold that Title VII prohibits retaliatory harassment
Employee is harassed because of protected activity
Hostile work environment framework applies
Separate claim
In light of the consistency between the two provisions, our
usual hostile work environment framework applies equally to
Jensen’s claim of retaliatory harassment. Thus, Jensen must prove
that (1) she suffered intentional discrimination because of her
protected activity;2 (2) the discrimination was severe or pervasive;3
(3) the discrimination detrimentally affected her; (4) it would have
detrimentally affected a reasonable person in like circumstances;
and (5) a basis for employer liability is present.

39. Proactive Employer Promptly and thoroughly investigate all claims
Secondary review of employment decisions
Suspensions or terminations
Warnings that may adversely affect an employee’s performance or future job opportunities

40. Proactive Employer Listen to complainers Lessons from Crawford:
ASK employees why they are refusing to or begrudgingly follows orders
Lessons from Crawford:
Carefully document when employees, during internal investigations, claim to have suffered similar unlawful treatment
Treat “me too” claims as new and distinct complaints subject to independent investigation and protection from retaliation
Apply Company rules consistently
Watch out for the causal connection
Wait a significant amount of time before taking any adverse action
Run decisions by counsel or management
Finally, the California Supreme Court’s decision also requires that employers give heightened
scrutiny to the possibility of retaliation claims arising out of everyday workplace actions.
Now, verbal and written criticisms of an employee’s performance as well as other acts which do not themselves have a direct financial impact on an employee, may, in combination with other actions, support a retaliation claim. Where many employers now have in place mechanisms for a secondary level review of more significant employment actions such as suspensions or terminations, where practical, employers may also now want to consider whether secondary review should also be given to records of any oral or written warning that will become part of an employee’s record and may thus adversely affect an employee’s

41. Proactive Employer Policies Clear Complaint Procedures Train managers
Anti-retaliation
Ethics, code of conduct
Clear Complaint Procedures
Train managers
Discuss personal liability issues
Ensure management is aware of whistleblower statutes that may apply to the business or industry

42. Proactive Employer
Limit those who “need to know” employee engaged in protected activity
Beware of unjustified negative job references
DOCUMENT, DOCUMENT, DOCUMENT
FOLLOW-UP IS KEY!!!
When an employee refuses to or begrudgingly follows orders, enter into discussion as to reasons
Create a policy.
Procedures for filing a grievance;
identify who handles the complaint;
a ban on retaliation; and
a tie between a strong and ethical code of conduct and performance measures that reflect adherence to it.

43. Proactive Employer Walk-the-walk against retaliation
Get buy-in from all management of seriousness of retaliation claims
Publicize your commitment
Take your company’s ethics pulse
What’s the current situation concerning whistleblowing and ethical conduct at your firm?
Do you have existing standards?
Finally, the California Supreme Court’s decision also requires that employers give heightened
scrutiny to the possibility of retaliation claims arising out of everyday workplace actions.
Now, verbal and written criticisms of an employee’s performance as well as other acts which do not themselves have a direct financial impact on an employee, may, in combination with other actions, support a retaliation claim. Where many employers now have in place
mechanisms for a secondary level review of more significant employment actions such as
suspensions or terminations, where practical, employers may also now want to consider whether secondary review should also be given to records of any oral or written warning that
will become part of an employee’s record and may thus adversely affect an employee’s
Get everyone on board.
Top management Line managers at every level must buy into the program,
Publicize your commitment.
Follow up.
None of the policies or publicity means anything unless the commitment is followed by action.
And after you resolve the problem, take it a step further and delve into why the problem occurred in the first place. Is it endemic? Is there a system that needs shoring up, or a practice that needs to be shelved?

44. Thank you !

45. This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with the presenter(s). You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.  

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Retaliation Claims on the Rise: Minimize Your Risk