The Ninth Circuit Court of Appeals Reminds Employers Just How Costly Retaliation Claims Can Be
After a nine-day jury trial, an employer, a current supervisor, and several of its former supervisors, were ordered to pay three employees $6.6 million for race-based discrimination and retaliation for filing administrative complaints about the discrimination. The case, Flores v. City of Westminster (9th Cir. 2017) 873 F.3d 739, illustrates the low burden of proof required to show retaliation, and the sheer difficulty California employers face in dealing with a current employee who has filed an administrative charge of discrimination.
In law enforcement, as is the case in many fields, participation in special assignments is a substantial factor in achieving promotion. At Westminster Police Department, three Hispanic officers felt the department was continually passing them over for special assignment in favor of lesser-qualified white officers. As a result, the officers filed a complaint with the Department of Fair Employment and Housing (DFEH). Five months later, the officers were again denied other special assignments, and written up for conduct routinely overlooked by the department. The officers sued the city, the police chief, and several former chiefs arguing the initial denials constituted discrimination, and the final denials were evidence of retaliation. The city countered with evidence that it had selected other Hispanic officers for special assignments, it routinely denied all officers’ initial applications for special assignments, and it based its decisions on factors unrelated to race or ethnicity. However, the jury sided with the officers.
California’s Fair Employment and Housing Act (FEHA) protects employees from discrimination, retaliation, and harassment in employment, based on long list of “protected categories” including, race, gender, sexual orientation, and religion (to name a few). The FEHA also prohibits employers from retaliating against any person making a complaint under, or opposing any practices prohibited by, FEHA. To succeed on a FEHA retaliation claim, an employee must show that the employer subjected the employee to one or more “adverse employment actions” because the employee engaged in protected activity.
What This Means for Employers:
This case demonstrates the low burden of proof required to show “adverse employment action,” which can broadly be defined as any action likely to impair an employee’s advancement or promotion. In determining whether an action is retaliatory, courts place significant weight on the timing of the action in relation to the occurrence of the protected activity. While there is no bright-line rule about the timing of retaliation, adverse employment action taken within eight months of protected activity will likely be viewed as retaliatory unless an employer has a compelling justification for the adverse action. It is also important to note that an employer can be found to have retaliated against an employee for filing a discrimination complaint, even though the underlying complaint is meritless. Lastly, individual managers and supervisors should remember that they can be held personally liable for discriminating and retaliating against employees. Contact Barsamian & Moody if your company is dealing with an employee who has recently filed an administrative charge of discrimination.
The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.