Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA) prohibit retaliation for actions taken in opposition to employment discrimination. An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.
What is an adverse action?
Examples of adverse actions include:
- Termination, refusal to hire, and denial of promotion
- Actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance
- Any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights
Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.
Who is a covered individual?
Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity are also covered individuals.
Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. For example, "whistleblowers" who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by Title VII or FEHA, but they may be protected by other state and/or federal laws that prohibit retaliation.
What constitutes protected activity?
Protected activity includes:
- Opposition to a practice believed to be unlawful discrimination (e.g., complaining to anyone about alleged discrimination against oneself or others; threatening to file a charge of discrimination; refusing to obey an order reasonably believed to be discriminatory)
- Participation in an employment discrimination proceeding (e.g., filing a charge of employment discrimination; cooperating with an internal investigation of alleged discriminatory practices; serving as a witness in an EEO investigation or litigation)