It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by FEHA. Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct by their employer or a manager actually violates the anti-discrimination laws. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.
Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.
To have a claim for retaliation, an employee does not necessarily have to be terminated. Creation of tolerance of hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of California Gov. Code section 12940(h). Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under the same section. However, mere ostracism in the workplace is insufficient to establish an adverse employment decision. Brooks v City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.
The following actions by the employer may be considered retaliatory: termination, denial of promotion, denial of pay raise, reduction in pay, selection for layoff, change in work schedule to a less desirable shirt and/or days off; denial of time off requests that were previously approved or of a type that was regularly approved in the past; transfer to a more difficult or less desirable position; change in job duties; relocation, including a change in office locations on the same property; demotion, warnings and suspensions; extension of probationary period; other disciplinary actions; employer’s solicitation of negative comments from coworkers; exclusion from meetings, training, seminars or other activities to which the employee used to be included in and/or should be included.
At the same time, usually mere subjective criticism of performance, nitpicking and micromanaging are alone not sufficiently severe acts to constitute retaliation.
Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.
The determination of whether a particular action by an employer rises to the level of actionable workplace retaliation should take into account the unique circumstances of the affected employee as well as the workplace context of the claim. A series of alleged discriminatory acts must be considered collectively rather than individually in evaluation of a retaliation and/or wrongful termination claim.