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Retaliation Claims May Succeed When Discrimination Claims Do Not

California’s laws regarding workplace discrimination have just become more employee-friendly. On October 8, Governor Gavin Newsom officially signed the Equal Pay and Anti-Retaliation Protection Act into law. This bill, officially titled Senate Bill (SB) 497, makes it substantially easier for employees to establish a retaliation claim in court successfully. 

Between SB 497 and California’s existing laws, it may be easier for employees to demonstrate retaliation than to prove discrimination. Below, we discuss how retaliation and discrimination differ, how the new law may make retaliatory actions easier to prove, and what you can do if you believe your employer has retaliated against you for a protected activity. 

Retaliation vs. Discrimination: How Are They Different?

Retaliation and discrimination are both ways that a company can violate its employees’ protected rights. However, the two violations occur in different contexts

Discrimination is taking adverse employment action or creating a hostile workplace because of someone’s protected characteristics. California law considered protected characteristics to include:

  • Sex, gender, and gender identity
  • Sexual orientation
  • Race, ethnicity, and national origin
  • Religion
  • Marital status
  • Disability
  • Citizenship
  • Primary language
  • Familial status and pregnancy

An employer cannot choose to fire, demote, cut hours or pay, or otherwise treat someone poorly because of these characteristics. If it does, it commits discrimination, and the victim has the right to submit a claim against them.

In contrast, retaliation is taking adverse action against someone because they exercised a protected right or engaged in a protected activity. The person’s characteristics don’t matter, just their behavior. Protected activities include:

  • Participating in religious events
  • Requesting or taking family leave
  • Requesting reasonable accommodations for a disability or pregnancy
  • Submitting a whistleblower complaint for discrimination or safety concerns
  • Filing a discrimination lawsuit against the company

If a company penalizes an employee in any way for these activities, it may be retaliatory, and the victim could file a lawsuit. 

Why Retaliation Claims May Be More Successful

Proving discrimination in court is often a complex process. Most employers are well aware that discriminating against employees for protected characteristics is illegal. As such, employers that discriminate are often doing so unintentionally, which can make collecting evidence to prove a claim more difficult. Instead of collecting direct statements, plaintiffs may need to gather substantial evidence from the company to establish a trend of discriminatory actions or the creation of a hostile workplace. 

Historically, this was also true for retaliation claims. Workers had to build a strong prima facie case for their claim before it would be considered. This frequently made it difficult for employees’ claims to be taken seriously. 

However, SB 497 should make it significantly simpler to establish retaliation in court. The new law creates a “rebuttable presumption of retaliation” if a worker is penalized or fired within 90 days of engaging in specific protected activities. Covered activities include: 

  • Filing a claim under the Equal Pay Act
  • Filing a complaint with the California Civil Rights Department
  • Reporting legal and regulatory violations to supervisors or other employees
  • Submitting a whistleblower report to a government agency

If you do any of the above and your employer fires or punishes you for any reason in the next 90 days, SB 497 instructs the court to assume that it was a retaliatory action automatically. The responsibility to prove otherwise falls on your employer, which must prove that the action was a reasonable and non-retaliatory reaction to unrelated circumstances. Only then will you need to demonstrate that the action was retaliatory despite your employer’s reasoning. This makes it significantly easier to establish your case in court and seek compensation for your losses.

Furthermore, a retaliation claim can succeed even if a discrimination claim does not. You do not need to win or even pursue a discrimination lawsuit in court to experience retaliation. Regardless of the outcome of your discrimination claim, any punitive action your employer takes against you as a result is considered retaliatory and may be grounds for its own lawsuit.

Proving Workplace Retaliation Claims in California

If you suspect you’re experiencing retaliation, it’s worth taking action. Your employer’s actions have likely cost you wages, benefits, and career opportunities. You deserve compensation for these losses, and a retaliation lawsuit can help you pursue justice. 

SB 497 makes this easier. However, if your employer provides a reasonable non-retaliatory reason for the adverse action taken against you, you will need to prove that you experienced retaliation. Depending on your circumstances, you may accomplish this by:

  • Collecting written communications: The strongest evidence for retaliatory action is a written statement by your manager or employer. These may include texts, emails, or other written messages. If you have received any threats or other communications stating that you will be punished or fired for engaging in a protected activity, save them immediately for use in your claim. 
  • Talking to your coworkers: Another valuable form of evidence is eyewitness testimony. Even if your employer has not written anything down, your colleagues are likely aware of what’s going on. If you were verbally warned in front of others, or if your coworkers have noticed that you’re being treated differently, they can testify on your behalf. 
  • Demonstrating a change in behavior by your employer: You can further support your case by showing that your employer began treating you differently after you engaged in a protected activity. If your hours were cut, your performance reviews dropped significantly, or you were fired shortly after requesting family leave, that strongly suggests retaliatory action.

If you believe you have experienced workplace retaliation, SB 497 now makes it easier to hold your employer accountable. We encourage you to reach out to the experienced employment attorneys at Le Clerc & Le Clerc LLP to discuss your situation. We can help you determine whether you have a case and the best path forward to achieve compensation for your losses. To learn more about how we can advocate for you, schedule your consultation with our California retaliation law firm today.

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