The retaliation law of California defines adverse employment action as that action taken against an employee to the degree that is enough to state a claim. Generally, the discrimination should be of the form that it curtails the privileges, financial benefits, and terms and conditions of an employees’ engagement with the organization.
A complaint of adverse employment can be categorized and classified on a case to case basis. Also, the degree or extent of adverse employment depends upon the extent of harm that has befallen the employee in terms of material as well as emotional trauma.
Instances of Employer Retaliation
An instance of employer retaliation may happen if an employee threatens to file a claim against discrimination that the employee has faced and which has been deemed unlawful under the retaliation laws California. Another instance could be an employee facing discrimination as a result of his supporting a colleague who has been sexually harassed by a person of power in the organization.
Citing of discrimination may include and not restrict up to the use of a particular language within the organization or a harsh workplace policy that discriminates employees against their physical appearance, nationalorigin, caste, color, gender, and race.
The job seeker may also claim retaliation by an employer if in any case he has been denied his rights to apply for a particular job or has been denied his candidature based on discriminating factors.
Intent of Retaliation
The employee who wants to file a claim against the retaliatory behavior of an employer can provide both direct and circumstantial evidence. Direct evidence is proof of remarks that the employer has made as evidence of retaliation. Circumstantial evidence relates to factors that affect an employees’ performance as he may not have been written up a proper appraisal as per his work for performance, denied being given a bonus, or have received fewer privileges compared to his co-workers.
Under such circumstances, the employee has to prove that the employer has undertaken activities that have otherwise been protected under law and the same behavior has continued over a span of time. Pieces of evidence of such behavior can be drawn from circumstantial evidence such as the employer’s understanding of the fact that he is indulging in unlawful behavior and yet continuing with it.
Retaliation claim
The employee must exhaust all administrative remedies before filing a claim for retaliation. The first step that an employee has to undertake is to find a charge of retaliation with the California department of fair employment and housing (DFEH).
Filing of such administrative charges of retaliation has to be filed within one year of the date of retaliatory behavior. Failing to file the charges on time dissolve the rights of the employees to file such charge. If after filing such charges the employer retaliates against that employee, then the employee has the right to amend the administrative charges or file a new charge citing the behavior.
Another charge with DFEH has to be filed suggesting retaliation from the employer as both the charges of discrimination and retaliation are interdependent and is enough to prove in a court of law.
Apart from this, an employee should also file a civil lawsuit within one year of the claim file issuing a right-to-sue notice to the employee. If DFEH fails to resolve the issue within one year then, the second right to sue letter does not include the fact that the employee has taken all administrative remedies.