It is illegal for an employer to retaliate against an employee who has made a discrimination or sexual harassment claim, or who has filed a charge with the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission, or who has participated in a sexual harassment investigation as either a complainer or a witness, or who has opposed discriminatory practices in the workplace.
While both the individual harasser and the employer are liable for sexual harassment claims in California, generally only the employer is responsible for retaliation in the workplace, not the individual. However, the California Supreme Court has left open the question of whether the individual harasser who participates in the retaliatory decisions of the employer may be held personally liable for the retaliation in the workplace.
The elements that a plaintiff must prove for a claim of retaliation in the workplace are the following:
- That the plaintiff was involved in an activity protected by the Fair Employment and Housing Act;
- That the defendant engaged in an adverse employment action against the plaintiff; or that the defendant engaged in conduct that, taken as a whole, materially and adversely affected the terms and conditions of the plaintiff’s employment;
- That the plaintiff’s protected activity was a motivating reason for the defendant’s decision to take an adverse employment action against the plaintiff;
- That the plaintiff was harmed; and
- That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
Note that for proof of the first element that the plaintiff was involved in an activity protected by the California Fair Employment and Housing Act, the plaintiff does not necessarily have to prove that the plaintiff was subject to a hostile work environment based on sexual harassment. Rather, the plaintiff need only prove that the plaintiff made a complaint of sexual harassment; plaintiff does not have to prove that the alleged sexual harassment claimwas sufficiently severe or pervasive to constitute a hostile work environment.