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The Subtle Side of Workplace Retaliation

Many employees are aware that workplace retaliation is against the law. Pursuant to such statutes as California Labor Code § 98.6 and California Government Code §12940[h], employers are prohibited from taking retaliatory action against an employee simply because that employee has exercised their right to protest or oppose discriminatory or other improper conduct in the workplace.

What many employees do not realize, however, is that workplace retaliation can take many forms, some of which are not as readily apparent as one might imagine. Drastic actions such as firing an employee immediately after filing a Workers’ Compensation claim after an injury or because of a safety complaint is clearly illegal. Employers have, however, become more sophisticated with respect to the subtle manner in which they retaliate against employees for engaging in protected activity to either force an employee to quit or to discourage other employees from protesting unlawful conduct in the future. The balance of this article will provide you with certain warning signs to look out for if you feel that something feels out of place at your job after you complained of perceived unlawful or improper conduct.

Here are a few of the most common ways that subtle workplace retaliation occurs.

Shift Changes.

Even if you are working the same amount of hours and at the same rate of pay, an unexpected and abrupt change in the time of an employee’s shift, such as a transfer to graveyard hours, could be deemed an adverse action for purposes of pursuing a retaliation claim. Such a shift change for an employee with young children will likely be deemed a “substantial” adverse change in employment conditions. It is important to remember that a retaliation claim requires a sufficient nexus between the adverse action taken by the employer and the employee’s complaints. The conduct about which the employee complains need not be unlawful provided that the employee reasonably believed that the actions were illegal.

Hostile Environment.

In some cases, after an employee files a complaint, their boss may begin to treat them differently which is not per se unlawful. However, a supervisor’s efforts to keep the employee at a distance in conjunction with other actions such as excluding them from meetings, training or network opportunities may be an adverse employment action. Verbal abuse and excessive micromanagement can additionally be indicators of an adverse action for purposes of proving a retaliation claim. However, the negative actions taken toward the employee engaging in protected activity must be considered “substantial” as opposed to “trivial.”

You are Passed Over for a Promotion or Raise.

This can constitute retaliation in cases where your past performance evaluations and employer’s communications clearly establish that you met or exceeded the necessary criteria for  a raise or the requested promotion. Similarly, your employer’s complaints about your current performance, shortly after you engaged in protected activity, that are inconsistent with all of your past performance reviews may be indicative of a retaliatory motive.

Are you the Victim of Workplace Retaliation?  Contact the Perrin Law Group today for your free consultation today and to stand up for your rights


Under California law, there are two types of sexual harassment that are actionable claims. The first type, quid pro quo sexual harassment, is the subject of this article. In a nutshell, quid pro quo sexual harassment involves a boss or supervisor requesting some type of sexual favor from a subordinate employee in exchange for some job benefit such as a raise, promotion or better work assignment. (Cal. Code Regs., tit. 2, § 11034, subd. (f)(1)) Alternatively, the supervisor suggests or implies some type of negative consequence if the employee does not provide the requested sexual favor. The second type of sexual harassment, hostile work environment, generally involves pervasive comments, photos or other behavior that alter the work environment for the employee. Hostile work environment sexual harassment will be discussed in a subsequent article.

ELEMENTS OF A QUID PRO QUO CLAIM

In order to prevail on a claim for quid pro quo harassment, the employee must prove that their supervisor or other higher-ranking employee made unwelcome sexual advances or comments in exchange for some positive employment benefit, such as a raise or bonus, if the subordinate agrees to the request. Alternatively, the supervisor suggests that the employee will suffer negative consequences if he or she does not agree to the sexual favor. Common examples of positive job benefits that may be suggested by the supervisor include a raise, promotion, job transfer or reassignment. Common examples of negative job consequences if the employee does not agree to the request may include a demotion, unfavorable transfer or reassignment and potentially a termination.

It is important to note that the suggestion of either a positive or negative employment consequence if the employee accepts or rejects the sexual advance may be either express or implied. However, an implied threat or proposal will be more difficult to prove from an evidentiary standpoint. Furthermore, the employee who rejects the sexual advance must suffer some type of adverse action in order to state a claim for quid pro quo sexual harassment. (Hughes v. Pair [2009] 46 Cal.4th 1035, 1049) Although the employee may not establish quid pro quo harassment if the supervisor does not follow through with the threat as there is no adverse employment action, there may be other viable claims available.

WHAT YOU SHOULD DO?

It is important to keep a written record of any interaction or other conduct by your supervisor that you find offensive. Similarly, file a report or speak with human resources about the harassment for several reasons. First, documentary evidence that human resources and correspondingly your employer is extremely helpful in proving your case. Second, an employer has an obligation to investigate complaints of harassment as it must take reasonable steps to insure that the workplace is free of discrimination or harassment. (California Government Code §12940[k]). Further, your employer is prohibiting against you for reporting harassment. (California Government Code §12940[h]). Lastly, you should speak with an experienced employee rights’ attorney if you have any questions and receive the guidance you need.

If you or a loved one are experiencing any type of workplace harassment or discrimination, contact the Perrin Law Group today for your free consultation as you do not need to go it alone.

 

Workplace retaliation is often difficult for an employee to detect. In a nutshell, retaliation involves your employer taking some form of negative action against an employee because they engaged in some form of protected activity that include, but are not limited to, protesting perceived discrimination, unsafe work conditions or discussing their wages with other employees. The remainder of this article sets forth common examples of protected activities which form the basis of a retaliation claim.

– Filing an EEOC or DFEH claim against their employer. A common type of protected activity involves when the employee has filed a claim with the Department of Fair Employment and Housing and/or the EEOC. These organizations protect employees from discrimination according to federal and state law, respectively — and their effectiveness is dependent on an employee’s ability to report violations freely and without fear of retribution. To this end, employees who file a FEHA claim may not be retaliated against by their employer for making such a claim. Similarly, an employer may not retaliate against an employee because they testified as a witness on behalf of another employee who pursued a FEHA claim. (California Government Code §12940[h])

– Speaking with a supervisor or manager about perceived harassment or discrimination. It is important to remember that your employer has the responsibility to maintain a fair and inclusive workplace, so if he or she allows employees of the organization to bully, harass, or discriminate, they could be found liable themselves for facilitating or failing to take the reasonable steps necessary to prevent such unlawful conduct. (California Government Code §12940[k])  In light of the obligation to provide a workplace free of harassment or discrimination, an employer clearly should objectively listen to your expressed concerns and not in any way retaliate against you for speaking your mind on perceived discrimination or harassment. Similarly, an employer may not treat an employee unfavorably because they would not participate in conduct that he or she reasonably believed to be discriminatory or constitute any form of harassment.

– Requesting Accommodation for a Disability or for a Religious Practice. Employers are legally obligated to provide reasonable accommodations to employees. In addition to engaging in the interactive process in good faith, an employer may not retaliate against an employee for requesting reasonable accommodations. (California Government Code §12940[m][2])

– Inquiring about Salary Information to Uncover Potentially Discriminatory Wages. Employees are fully within their rights to discuss salaries amongst themselves or even to ask managers and superiors for such information. Workplace policies regarding such practices are strictly illegal — as is retaliating against employees for seeking information on the subject or discussing wages, bonus programs and other forms of compensation.(California Labor Code §232)

If you feel that your employer has recently treated you unfairly because you asserted your rights under California law, it is important to contact an experienced employment law attorney as soon as possible. Signs that your employer may be retaliating against you include an unfavorable performance review, unwarranted verbal or written reprimands, demotions, job transfers, increased scrutiny and being excluded from meetings or communications in which you were previously involved.

For more information on workplace retaliation or other employee-related questions with respect to a potential claim against your current or former employer, contact the Perrin Law Group today for your free consultation.

The issue of sexual harassment has dominated the news and social media with numerous claims made against Harvey Weinstein, Al Franken Kevin Spacey, Matt Lauer and many others. Unfortunately, workplace harassment, specifically sexual harassment, has become far too common and often goes either unreported or ignored by the employer. There are, however, both federal and state protections against sexual harassment in the workplace. In California, the Fair Employment & Housing Act (“FEHA”) prohibits sexual harassment and requires that an employer take the reasonable steps necessary to prevent harassment. Similarly, Title VII of the Civil Rights Act provides the analogous protections under federal law. In most cases, California employees file sexual harassment claims under FEHA as its protections are more expansive than the Civil Rights Act.

Quid Quo Pro Harassment

One type of sexual harassment is known as quid pro quo harassment. In a nutshell, this type of harassment involves a supervisor holding some form of job benefit over the subordinate employee’s head in connection with a sexual advance. For example, the supervisor threatens the employee with the loss of some benefit, such as a job title, or offers a raise in exchange for sex. A supervisor need not directly threaten an employee with a loss of a job benefit as the threat can be implied with references to sexual acts that should have absolutely no involvement in the employee’s work environment.

The second category of sexual harassment involves conduct that creates a hostile work environment for the employee. A hostile work environment can result by way of offensive touching, inappropriate emails or text communications, and/or sexually charged comments or jokes. California law normally requires more than one vulgar comment or inappropriate touching to be actionable as the sexual harassment must be pervasive in a workplace. Although an isolated sexually charged comment or touching should have no place in the workplace, they are unfortunately legally insufficient for purposes establishing a sexual harassment claim. Part of the logic behind the pervasiveness requirement may be that individuals have differing views on the type of comments or conduct that is considered acceptable in the workplace so that it is nearly impossible to develop a bright line rule.

In contrast to most other FEHA claims for discrimination or retaliation, supervisors and coworkers can be held personally liable for sexual harassment. Similarly, your employer is legally obligated to take the reasonable steps necessary to prevent harassment that should obviously include an objective and thorough investigation after receiving notice of potential improper conduct. (California Government Code §12940[k]).

The comments and behavior that make up a viable sexual harassment claim can be complicated. If you or a fellow employee were subjected to unwanted sexual advances or other inappropriate conduct in the workplace, contact the Perrin Law Group today for a free consultation.

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