Retaliation
California law prohibits employers from punishing employees who report unlawful conduct, assert workplace rights, or participate in protected activity. Retaliation claims arise when an employer takes adverse action against an employee because of something the employee was legally entitled — or required — to do.
Elements of a Retaliation Claim
California's official jury instructions set out precisely what a plaintiff must prove to win at trial — giving you a clear picture of exactly what your case requires. Under the California Civil Jury Instructions (CACI No. 2505) (Retaliation — Essential Factual Elements, Gov. Code § 12940(h)), a plaintiff must prove each of the following:
- The plaintiff engaged in or was perceived to have engaged in a protected activity;
- The defendant subjected the plaintiff to an adverse employment action;
- The plaintiff's protected activity was a substantial motivating reason for the defendant's decision;
- The plaintiff was harmed; and
- The defendant's conduct was a substantial factor in causing the plaintiff's harm.
What Counts as Protected Activity
Protected activity under FEHA includes complaining about discrimination or harassment, requesting a reasonable accommodation, filing a complaint with the CRD or EEOC, participating in an investigation, or opposing any practice made unlawful by FEHA. (Gov. Code § 12940(h).)
Adverse Employment Action
Retaliation claims cover the same range of adverse actions as discrimination claims — termination, demotion, schedule changes, reassignment, hostile treatment — and the standard is broader: any action that would deter a reasonable employee from engaging in protected activity. See CACI No. 2509.
Timing and Inference
Close proximity in time between protected activity and an adverse employment action can support an inference of retaliatory motive, particularly where the employer's stated reason does not hold up to scrutiny.
Frequently Asked Questions
What is workplace retaliation under California law?
Retaliation occurs when an employer punishes an employee for engaging in protected activity — such as complaining about discrimination or harassment, requesting a reasonable accommodation, filing a complaint with the CRD or EEOC, or participating in a workplace investigation. California law prohibits this under Government Code section 12940(h).
What counts as protected activity for a retaliation claim?
Protected activity includes making internal complaints about discrimination or harassment, requesting a reasonable accommodation, opposing practices you believe violate FEHA, filing a formal complaint with the California Civil Rights Department or EEOC, or participating as a witness in a workplace investigation.
How is retaliation different from discrimination?
A discrimination claim is based on who you are (a protected characteristic like race or disability). A retaliation claim is based on what you did — specifically, something you were legally entitled or required to do. In many cases, both claims arise from the same set of facts.
What is a substantial motivating reason in a retaliation case?
Under CACI No. 2505, the plaintiff must prove that protected activity was a substantial motivating reason for the adverse action — meaning it was more than a remote or trivial factor. The employer's stated reason must be scrutinized to determine whether it is a pretext for retaliation.
Request a Confidential Consultation
If you believe you have been retaliated against for reporting unlawful conduct or asserting your rights at work, Teti Law offers confidential consultations to evaluate your matter.