186 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com 6.11 Special Rules for Retaliation Under both federal and California law, employers cannot retaliate against employees for engaging in protected activity, even where the conduct the employees oppose turns out to be lawful.283 But California diverges from federal law in several key respects in ways that broaden employers’ liability for retaliation. 6.11.1 Broad definition of protected activity To prove retaliation under federal law, plaintiffs must show they engaged in protected activity, which means that they participated in a discrimination charge or lawsuit or at least overtly opposed what they reasonably thought was unlawful discrimination.284 In California it’s different. Here the employee’s opposition need not be overt. In fact, plaintiffs who disagree with employer directives they believe to be discriminatory need not express that belief. Instead, all they must prove is that the employer knew the plaintiff thought the directive was discriminatory. Thus, the California Supreme Court permitted a female manager to proceed on a retaliation claim in which her “opposition” activity was simply resisting a male manager’s order to fire a female cosmetics sales clerk for not being pretty enough.285 In the Court’s view, the plaintiff had engaged in protected activity even though she did not report or protest the offensive order to fire the sales clerk, but rather simply said she needed more “justification.” It was enough that she reasonably believed that the order to fire the clerk was discriminatory and that the employer, “in light of all the circumstances,” was aware of that belief. California has also expanded the scope of protected employee activity to include an employee’s request for a reasonable accommodation with respect to either religious accommodation or disability accommodation.286 California courts apparently recognize that to be protected, a plaintiff’s oppositional activity must be in good faith; the law does not protect knowingly false charges.287 Nor does the FEHA protect either lying or withholding information during an employer’s internal investigation of a discrimination claim.288 6.11.2 Broad definition of adverse employment action The California Supreme Court acknowledges that an adverse employment action “must materially affect the terms, conditions, or privileges of employment to be actionable” under the FEHA,289 but broadly defines adverse employment action for purposes or retaliation to include “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” The California Supreme Court has thus permitted a retaliation plaintiff to establish an adverse employment action by citing a wide variety of intermediate personnel management decisions, such as (1) unwarranted negative performance evaluations, (2) a refusal to allow the plaintiff to respond to allegedly unwarranted criticism, (3) unwarranted criticism voiced by a manager in the presence of the plaintiff’s associates, (4) a “humiliating” public reprobation by a manager, and (5) a manager’s solicitation of negative feedback from the plaintiff’s staff.290 By this approach, the “totality of the circumstances” could show an adverse employment action against the plaintiff even if she never suffered a formal job detriment. In 2024, the California Supreme Court broadened the scope of what constitutes an adverse employment action. In Bailey v. San Francisco District Attorney’s Office, the plaintiff reported to Human Resources an incident where she was called a racial epithet by a coworker. The Human Resources manager allegedly (1) obstructed investigation into the underlying incident by failing to submit a formal complaint; (2) chastised the plaintiff for recounting the incident to other employees; (3) refused to separate the plaintiff from the coworker after the incident; (4) exhibited hostility towards the plaintiff, which included “ignoring her, laughing at her, staring at her, jeering at her, and once mouthing the words ‘you are going to get it’ to her”; (5) requiring the plaintiff to cover the
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