RETALIATION LAWYER

Employment retaliation is significant, and can create punitive damage exposure. However, it is important for employees to understand what retaliation is and avoid using the term like a sensational, although hollow phrase. The purpose of this article is move the phrase, “Retaliation” from being a mere buzz word while to providing a proper legal context to its meaning.

First off, not all retaliation can be sued for. Retaliation must relate to a complaint about something illegal, whistle blower retaliation, or it is conduct done to an employee because they complained about conduct prohibited under the Fair Employment and Housing Act (FEHA). For example, the Fair Employment and Housing Act prohibits employers from discriminating on the basis of age, disability, California Family Rights Leave/Family Medical Leave, pregnancy, race, and sex.

In order to prove retaliation under the Fair Employment and Housing Act, an employer must establish the following elements as illustrated in the below jury instruction our law firm recently used in a jury trial involving retaliation due to sexual harassment.

1-877-525-0700 GETS YOU IN TOUCH WITH A WORKPLACE RETALIATION LAW FIRM

2505. Retaliation-Essential Factual Elements (Gov. Code, §12940(h))

Marina CHAVEZ claims that RICHARD RAMIREZ retaliated against her for complaining to Bad Employer’s management she was subjected to either: unwanted sexual advances, unwanted verbal or physical conduct of a sexual nature, unwanted harassing conduct because she was a woman, her job benefits were conditioned upon her acceptance of sexual advances or conduct. To establish this claim, Marina CHAVEZ must prove all of the following:

  1. That Marina CHAVEZ complained to Bad Employer’s management she was subjected to either: unwanted sexual advances, unwanted verbal or physical conduct of a sexual nature, unwanted harassing conduct because she was a woman, her job benefits were conditioned upon her acceptance of sexual advances or conduct.

  2. That Bad Employer and/or RICHARD RAMIREZ subjected Marina CHAVEZ to an adverse employment action;

  3. That Marina CHAVEZ’s complaining to Bad Employer’s management she was subjected to either: unwanted sexual advances, unwanted verbal or physical conduct of a sexual nature, unwanted harassing conduct because she was a woman, her job benefits were conditioned upon her acceptance of sexual advances or conduct was a substantial motivating reason for Bad Employer and/or RICHARD RAMIREZ’s decision to subject her to an adverse employment action;

  4. That Marina CHAVEZ was harmed; and

  5. That Bad Employer and/or RICHARD RAMIREZ’s conduct was a substantial factor in causing Marina CHAVEZ’s harm.

RETALIATION AT WORK

Presuming an employee’s retaliation is either due to a complaint conduct violated the Fair Employment and Housing Act, the next issue concerns whether the complaint about illegal discrimination at work was the, “Substantial Motivating Reason” for the adverse employment action. This standard went into effect some years back and it matters. Some years back, after winning a pregnancy discrimination lawsuit the California Supreme Court told our firm we had to retry an already won case due to one word in one jury instruction so the jury could determine if the employee’s termination of employment was substantially motivated by her pregnancy.

Below is a jury instruction our firm asked for in December of 2016 after the law on “Substantially motivated” changed. This instruction explains what a substantial motivating reason is.

2507. “Substantial Motivating Reason” Explained

A “substantial motivating reason” is a reason that actually contributed to an adverse employment action including retaliation. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the resignation or retaliation.

RETALIATORY DISCHARGE

Presuming the employee complained of illegal discrimination under FEHA, and the complaint or protected status such as sex was a substantial motivating reason for the employment decision the last question is whether the employment decision was, “An adverse employment decision.” The definition of adverse action you see below is from a jury instruction we requested in a December of 2016 trial. If a jury hears a jury instruction that becomes the standard. Only an appellate court can decide the jury instruction was improperly given.

2509. “Adverse Employment Action” Explained

To prove retaliation, Marina CHAVEZ must prove that she was subjected to an adverse employment action.

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if Bad Employer and/or RICHARD RAMIREZ has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of Marina CHAVEZ’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

FIND A RETALIATION LAWYER

Without an experienced job termination lawyer an employee cannot properly evaluate whether their work problem amounts to retaliation they can sue for, or under which laws they should sue. Not all annoying things that happen at work are legal retaliation. Additionally, not all forms of retaliation can be proven.

Practically speaking, a serious employee lawyer is unlikely to take a retaliation case that does not involve either a job termination, or substantial economic impact on the employee. Substantial economic impact may include hours being cut to less than half, or a salary being cut significantly more than 30%. Targeted, unusual emotional torment may also lead to a retaliation verdict, but merely assigning somebody more work is not likely to motivate counsel.

Call our law firm and talk about what happened at work. Let us evaluate whether you are the victim of employment retaliation.

CALL 1-877-525-0700 TO SPEAK TO A WORK RETALIATION LAW FIRM