Retaliation Claim Basics in California

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Law Office of Arkady Itkin

San Francisco, CA

To prove a retaliation claim in California, an employee must show that (1) he has engaged in a "protected activity" - i.e. complaining about unlawful discrimination, unlawful harassment, safety violations, patient safety at a healthcare facility, or exercising a number of other protected rights under the law, (2) he suffered a tangible adverse employment action, such as demotion or termination, and (3) the reason or the main reason for being demoted or terminated is that protected activity. In other words, he was terminated "because" of the protected activity, and not for some other personal, non retaliatory reasons, however unfair or hurtful it might be.

The third element is the critical one, which litigation usually focuses on. The employer claims that they had other, non-retaliatory reasons for disciplining or terminating an employee, while the employee will argue tha those other reasons are just a cover up for unlawful retaliation. Different kinds of evidence are introduced by both sides.

Generally, there are three common kinds evidence that an employee can use in order to prove his retaliation claim:

(a) Timing. If demotion or termination occurred shortly after the employee engaged in a protected activity, this is one kind of fact that will help that employee prove that the reason for his termination was that protected activity. There is no bright line rule of what constitutes close timing for purposes of proving retaliation, and it depends on a lot of other circumstances, including the employee's length of service with the company, the nature of the protected activity, etc.

A typical situation where retaliation can likely be esablished through timing is where an employee, after working for a company for 10 years and receiving good reviews, starts receiving bad reviews, is placed on a PIP and terminated just a few months after suffering an injury, or asking for accommodations or filing a workers comp claim.

(b) Retalitaory Statements. This kind of evidence is rarely available, but it is the strongest, most direct evidence of retaliation. Any statement by the employer who is later involved in demotion or termination, which suggests that he or she is unhappy about the employee engaging in a protected activity can be used to prove a retaliation claim. Some common examples are e-mails to the aggrieved employee, stating "I can't believe you backstabbled us with your complaints", "We are going to make your life harder, as we don't respect rats", "traitor", etc. It's really worth going through all documens and all available e-mails to try to find that kind of "smoking gun" as even one e-mail or one memo can make a difference between having a weak case and having a strong retaliation case.

(c) Other Employees Are Treated More Leniently. A less significant, but still helpful evidence in proving retaliation is showing that other employees are disciplined less harshly or not disciplined at all for similar violations or issues for which you have been told you were terminated.

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