Lynberg & Watkins California Employment Law Guide, Part 2 of 4: Discrimination, Harassment, and Retaliation Claims and Defenses

By: Ric C. Ottaiano, Keith R. Dobyns, and Patrick J. Kirby

This is Part Two in a Four Part series dedicated to informing California employers , and helping employers to address and prevent discrimination, harassment, and retaliation in the workplace.  To read an overview of the series, click here.  To read Part One, click here.

In the context of employment litigation, California employers are most frequently faced with employees or former employees claiming violations of California’s Fair Employment and Housing Act’s prohibitions on discrimination, harassment, and/or retaliation.  This post will tackle the most frequent scenarios under which plaintiffs claim FEHA violations, as well as address some common defenses employers can rely upon in defending against such claims by employees.


Under the FEHA, California employers are prohibited from discriminating in any way in the hiring, employment, or termination of individuals based on that individual’s “protected class.”  For example, employers may not discriminate against or in favor of persons on the basis of: 



-Skin color

-National origin


-Physical or mental disability

-Medical condition

-Marital status


-Gender orientation or identification


-Sexual orientation

In order for an individual to assert a claim of discrimination under the FEHA, all that person needs to allege at the outset is that he or she belongs to a “protected class” covered by the law (see above list), and that he or she experienced some adverse employment action as a result of that “protected class,” such as not being hired, being given less desirable job assignments or pay or benefits, or being terminated, just to list a few possibilities.  Because the bar for an individual to file a lawsuit claiming discrimination is set so low, employers must be extremely diligent to ensure that they take every opportunity to prevent such claims, and effectively prepare themselves in advance to defend against such claims when they arise.

An employer can protect itself from groundless claims by consistently, thoroughly, and properly documenting legitimate, non-discriminatory reasons for taking any action against an employee.  It is generally accepted that employers are allowed to terminate employees (or take other adverse employment actions) for a good reason, no reason, or even a bad reason, so long as it is not a discriminatory reason.  Thus, an employee who violates company policy, is not performing competently, or is simply not a good fit for the company can be lawfully disciplined or terminated. 

The most common use of legitimate, non-discriminatory reasons revolves around employee performance.  Examples of sufficient, legitimate reasons for disciplining an employee include mishandling telephone messages, taking extended vacation during busy times, and insubordination.  The important issue that often arises in litigation, however, is how well such reasons were documented by the employer prior to terminating the employee.  Often the key difference between a simple, straightforward defense to a discrimination lawsuit, and one which is much more drawn out and complex turns simply on how well-documented the reasons for termination were.  For this reason, the number one thing employers can do to protect themselves from claims such as this is to ensure prompt, thorough, and consistent written documentation of any and all personnel issues.


In addition to prohibiting discrimination in employment decisions based on the protected classes addressed above, the FEHA also forbids employers from harassing or permitting the harassment of employees based on any of the protected categories listed previously.  Compared to discrimination, harassment consists of a type of conduct not necessary for performance of a supervisory job.  Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.  

Beyond providing a basis for a civil lawsuit arising out of unlawful harassment, the FEHA also requires that California employers post certain information notifying employees that harassment is unlawful, and mandates bi-annual training for all management or supervisorial employees under certain circumstances.

Under the FEHA, an employer can be held liable for harassment when a plaintiff is able to show that he or she was harassed as the result of their “protected class” (addressed above), and that the harassment was committed by a supervisor or manager, or by any other co-worker if the employer “knew or should have known” that the harassment was occurring and failed to take immediate and appropriate corrective action.  Importantly, under the FEHA, in addition to the potential liability of the employer, supervisors or managers can be held individually liable for their own harassing conduct.

There are certain defenses employers can invoke to protect themselves from harassment claims filed by employees.  The most common are:

Neither Severe Nor Pervasive  To be actionable, a harassing environment must be severe enough or sufficiently pervasive (continuous) to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees.  Whether conduct creates a hostile work environment is determined by looking at the surrounding circumstances, including the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.  Thus, conduct that is either extremely severe (such as an offensive touching) or minor but nevertheless continuous (such as ongoing comments and remarks directed at an individual) can create a “hostile work environment” that may give rise to liability.  However, it is widely understood that workplaces are rarely tranquil sanctuaries and the laws on discrimination and harassment are not meant to create a civility code for workplaces. 

Not Unwelcome  Whether conduct constitutes harassment requires both an objectively hostile environment and also the victim’s subjective perception that the environment is abusive.  Accordingly, an employee that actively participates in questionable or offensive conduct in one instance cannot be said to have been offended by other, similar conduct on a different occasion.  Evidence of an employee’s penchant for engaging in questionable conduct is oftentimes gleaned from talking with the employee’s co-workers or reviewing email history to determine if the employee ever participated in any similar conduct of which he or she is now complaining.

No Actual or Constructive Knowledge  To render the employer liable for coworker hostile environment harassment, the employee must prove the employer knew (actual knowledge) or should have known (constructive knowledge) of the harassment and failed to take prompt remedial action.  The employer owes a duty to investigate whenever it becomes aware of harassment through any means.  It is not essential for the victim of the harassment to lodge a formal or informal complaint.  The requirement for the employer to have actual or constructive knowledge only applies to instances of co-worker harassment.  Where the harassment involves – either directly or indirectly – a supervisor, the law holds the employer strictly liable for the supervisor’s conduct.

Prompt Remedial Action Taken  Once an employer becomes aware that an employee has been subjected to harassing conduct at work, the employer has a duty to take prompt corrective action that is reasonably calculated to end the harassment.  This requires that temporary steps be taken to address the situation while the employer determines whether the complaint is justified and the implementation of remedial or corrective measures to prevent future harassment.  The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt and fair investigation to determine whether the complaint is justified.  An employer’s swift and calculated attempts to protect the employee being harassed can insulate it from future liability for failing to prevent the harassment from occurring.  Again, any harassing conduct perpetrated by a supervisor automatically imposes liability on the employer and the employer cannot rely on taking prompt remedial action against the supervisor in order to avoid liability.  However, taking such action can go a long way towards minimizing the exposure an employer faces in such a circumstance.


One of the most prevalent grounds for lawsuits within the employment context stems from the FEHA’s “anti-retaliation” provisions.  These statutes prohibit an employer from taking any “retaliatory” action against an employee as a result of the employee complaining about their perceptions of discrimination or harassment occurring within the workplace, or assisting or participating in any type of investigation or proceeding into claims of discrimination or harassment.  Under the FEHA, such actions are considered a “protected activity” and an employer cannot take any adverse or negative action against an employee because that individual spoke up about or complained about perceived unlawful discrimination or harassment, even if the employee’s claims are ultimately determined to be meritless.

If this sounds to you like an extremely vague concept, you are not alone.  Claims by an employee and/or former employee of retaliation under the FEHA are among the most complicated and difficult to defend against, in large part because the scope of what constitutes a “protected activity” and what amounts to an “adverse action” are often unclear, and are in a near-constant state of flux.

Some of the most frequent types of actions by an employee that have been found to constitute a “protected activity” that can give rise to a claim of retaliation are:

-Making any oral or written complaint to a manager or human resources of potential discrimination or harassment in the workplace;

- Filing a complaint or charge with the Department of Fair Employment and Housing alleging discrimination or harassment against a fellow employee or the employer;

-Refusing to hire an individual based on past complaints of discrimination or harassment against a prior employer;

-Exercising rights to take disability or other medical leave;

-Requesting accommodations for physical or mental disability;

-Assisting another employee or acting as a witness in an investigation or lawsuit addressing claims of unlawful discrimination or harassment.

This list is by no means exhaustive, and employers should tread lightly in this area, and should often err on the side of caution when evaluating whether an employee has possibly engaged in a “protected activity” that could form the basis of a retaliation lawsuit.

Because an employee must be able to point to some type of negative action taken against them in order to sufficiently claim retaliation, the second important issue in the context of FEHA’s anti-retaliation provisions centers on what constitutes an “adverse employment action.”  Unfortunately, the short answer to this question is “just about everything.”  The following actions either have or could be found to constitute an adverse employment action sufficient to support an employee’s claim of retaliation:

-Employer transfers an employee to a different department within the company that the employee perceives to be less desirable;

-Employer changes the shift worked by an employee;

-Employer demotes the employee to a position with lower pay or benefits, or less responsibility;

-Employer harasses or permits harassment against an employee;

-Employer holds employee who has engaged in a “protected activity” to a higher standard than other comparable employees;

-Employer failing to take corrective action after an employee complains about discrimination or harassment;

-Employer gives employee a negative performance evaluation;

Again, this list is by no means comprehensive, and there are innumerable other actions that could potentially form the basis of an employee’s claim of retaliation.  The importance of this list is that it illustrates how diligent employers must be in adopting and enforcing policies that sufficiently enable employees to be open and forthcoming about potential instances of discrimination or harassment without fear of negative action by managers or supervisors.

As with discrimination, the defenses most commonly applicable to claims of retaliation center on the employer’s legitimate, non-retaliatory reason for taking any action adverse to the employee.  In this regard, courts usually find most persuasive any legitimate reasons that arose before the employee complained or engaged in any other “protected activity.”  For example, if an employer set benchmarks for an employee before the employee engaged in any protected activity, the employer can rely on those benchmarks in taking an adverse action against the employee and assert legitimate reasons in response to a charge of retaliation.  For these reasons, employers are best able to protect their interests by ensuring adequate written documentation and communication of any and all personnel issues.

Be sure to check back next week for Part Three in this ongoing series, as the Lynberg & Watkins Employment Law Blog team lays out a number of practical steps that employers can take to prevent claims of discrimination, harassment, and retaliation in the workplace.

If you have questions about these, or any other employment-related issue, contact Lynberg & Watkins Partner Ric. C.Ottaiano.

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