The Need For a Causal Link to Adverse Employment Action

On December 9, 2009 the California Court of Appeals decided the case of George v. California Unemployment Insurance Appeals Board (2009) 179 Cal.App.4th 1475. In that case, a jury found that a state agency had unlawfully retaliated against George, an employee, in violation of Section 12940(h) of the California Fair Employment and Housing Act (“FEHA”). After George filed an administrative complaint alleging gender discrimination, a coworker told George that she would be sorry if she pursued her complaint that her male coworkers were receiving preferences in travel assignments. The coworker was later promoted to a supervisory position and made numerous allegations of misconduct against George. After filing a civil service complaint, George filed a civil action in the Superior Court of Fresno County alleging that the misconduct charges were retaliatory.

The Court addressed the need for a causal link to adverse employment action and distinguished the California Supreme Court holding in Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028. The Court said George was required to prove that the suspensions had resulted from retaliatory animus rather than from other causes. In other words, the Court said there must be a causal link between the protected activity (reporting a claim of sexual harassment) and the employer’s action.

The employer relied on Yanowitz v. L’Oreal, arguing that an employee must show that his or her protected activity was the result of a reasonable and good faith belief that the employer acted unlawfully. The specific claim in the case was that the employer had discriminated against female administrative law judges in making travel assignments. George argued that the reasonable good faith belief test from Yanowitz did not apply to the “participation clause” of the FEHA’s retaliation provisions. The FEHA makes it unlawful for an employer to retaliate against an employee who has opposed any discriminatory action or who has filed a complaint, testified, or assisted in a FEHA proceeding (the “participation clause”). George argued that her charge at the Department of Fair Employment and Housing (“DFEH”) was protected activity falling under the participation clause of the FEHA and that she did not have a requirement to prove she acted reasonably and in good faith when she filed her charge with the DFEH.

The Court of Appeals agreed with George by saying that the agency had misapplied Yanowitz. The Court explained that the issue in Yanowitz was whether the refusal to follow an employer’s directive, based on the erroneous belief that the directive violated the FEHA, was protected activity under the FEHA. The Court posed the issue as whether the employee’s failure to follow the employer’s order constituted opposition to discriminatory practices (protected activity under FEHA), if the order is later determined to be lawful? Yanowitz concluded such activity was protected if the employee acted in good faith and with a reasonable belief that the employer’s order (the action opposed) was discriminatory. The Court explained that Yanowitz did not suggest that an employee has to show that his or her DFEH charge was filed with a reasonable and good faith belief that the charge was well founded. The Court held that the employer’s reading of Yanowitz improperly attempted to insert a new element into a retaliation claim. The Court of appeals thereby held that the employee did not have to show a reasonable and good faith belief that the charge was well founded, particularly where the retaliation claim was based on alleged conduct expressly identified by the statute as protected, such as the filing of a DFEH charge.

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