Retaliation for Engaging in a Protected Activity

Author: Mesriani Law Group
Posted on: June 10, 2020

Sounds like a scary thing to be “engaged” in, right? Depends on who you are; the company or the worker. Here, at Mesriani Law Group, we are employee-friendly; we fight for the worker. So naturally, this article which focuses on employment retaliation claims is designed to educate hard workers, like yourself. The purpose to alert employees to identify when a company may be retaliating against you after you have engaged in a protected activity. If, after reading, you feel this is the case, you may have a legal recourse in the form of an employment retaliation claim.

For an employment retaliation claim in the State of California, your attorneys will need to prove three things, 1) you engaged in a protected activity; 2) you were subjected to an adverse employment activity; and 3) you suffered damages.

What is a Protected Activity in California?

California defines a Protected Activity as opposing unlawful conduct. A few examples the Equal Opportunity Commission (EEOC) have provided are:

  • Complaining or even threatening to complain about discrimination happening to yourself or others while at work or by a co-worker
  • Refusing to carry out an order that you reasonably believe to be discriminatory or illegal
  • Providing information in an investigation against your employer
  • Telling a supervisor to stop harassing you or to stop making advances on you
  • Standing up for a co-worker who is facing harassment by another at work
  • Complaining about perceived wage violations your company is committing

The above list shows only a few illustrations. In actuality, there are numerous ways an employee can make a stand against his or her employer that would qualify as a Protected Activity.

What is an Adverse Employment Action in California?

An Adverse Employment Action can manifest itself in a variety of ways. Once you have resisted or complained about something potentially illegal occurring in or around the workplace, things may get uncomfortable. When people want to punish you, they can be creative. The most common Adverse Employment Action is outright termination. However, a demotion, a cut in salary, relocation to a distant office, shrinking of your duties, all constitute Adverse Employment Actions.

For Example: If you complained to Human Resources that your boss won’t stop hitting on the new receptionist, once your boss learns it was you, he may retaliate against you. He may come up with a bogus reason to fire you or lay you off. In times like these, with companies struggling amidst the COVID-19 crisis, you boss may use a lack of work to let you go. However, if the real reason is because you got him in trouble with Human Resources, THAT IS ILLEGAL.

How a standard Employment Retaliation Claim may play out  

First, the employee’s lawyer alleges that his/her client (i.e. You), suffered an Adverse Employment Action because he or she engaged in a Protected Activity, and you suffered damages as a result.

To use the example above, I, your lawyer, would allege that you, my client, were fired because you reported your boss hitting on the new receptionist. Here, your reporting of your boss is the Protected Activity and your firing would be the Adverse Employment Action.

The defense counsel, your company’s attorney, will likely combat our allegation by offering a legitimate reason for your termination. For instance, they may say that the economy is super slow, and we are laying people off. If true, this is a legitimate, perfectly legal reason. Even if you were fired after you complained about your boss using his position of authority to make sexual advances on a young receptionist, if the company is in fact downsizing or eliminating your position—that is not illegal. They can let you go.
However, once the defense counsel offers a purportedly legitimate and perfectly legal excuse as to why they let you go, your attorney will need to counter with proof their reason is bogus and pretextual. I need to show that the real reason you were fired was because you complained about your boss.

This is where having an experienced, creative attorney is crucial. You could prove the reason was bogus by digging into who else was laid off during this time period. If you were the only one, then your former company’s motives look suspect at best, illegal at worst. If they laid off 5 employees, but you were the only one in your position, the termination still looks suspect. There are many ways to counter the defense counsel’s offering of a legitimate reason they let you go. If you are experiencing or have recently experienced this situation, please reach out for a free consultation with the Mesriani Law Group.