San Francisco Employment Law Firm Blog
Retaliation claims are some of the most common employment law cases filed in California, and usually in conjunction with a wrongful termination claim. It is important for any potential plaintiff in a wrongful termination case to consider whether he can also include a retaliation claim because retaliation is often easier to establish or prove than discrimination and other types of violations. This is because under certain circumstances, a retaliation claim may be brought by an employee who has engaged in a protected activity of complaining or opposing unlawful discrimination or harassment, even when a court or jury subsequently determines that the conduct was actually not unlawful (Flait v North American Watch Corp). Under the law, an employee is protected against retaliation if the employee reasonably and in good faith believed that he whatever he was opposing constituted unlawful employer conduct.
For instance, the court in Drinkwater v Union Carbide Corp. held that even though the employee was not able to establish a hostile work environment claim based on a few isolated incidents, she was able to make a retaliation claim, because she reasonably and in good faith believed that the harassers highly offensive sexual remarks constituted harassment when she made a protected complaint about the same to her higher management.
This is actually a very common workplace scenario. Imagine that you complain to your human resources department about feeling harassed or discriminated by your immediate supervisor. Your hr office conducts an investigation and they determine that not discrimination or harassment took place. Subsequently, your supervisor-harasser retaliated against you by writing you up and firing you. You bring several claims in court for 1. wrongful termination; 2. discrimination; 3. retaliation.
If you are unable to present some evidence to the court that the reason you were terminated was discriminatory – i.e. that you were terminated because of your gender, race, disability, sexual orientation, religion and not for some other personal reason, fair or unfair, that claim will very likely be dismissed on summary judgment.
On the other hand, a retaliation claim will likely be much easier to establish. First, if the timing is on your side – if you were terminated shortly after engaging in a protected activity (within a few months), and if you have history of good performance and no significant disciplinary issues before complaining about your supervisor, the dismissal of your retaliation claim will be unlikely. This is especially true with respect to long-term employees who are fired within days of making a discrimination or harassment complaint about their manager. There is a lot more going into proving a retaliation claim but the above is a good start and will certainly make any employment attorney want to look deeper into whether you were actually wrongfully terminated and there is sufficient evidence to pursue a case on your behalf.