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What You Can Do If Your California Employer Fired You for Resisting or Complaining About Sexual Harassment by Your Supervisor

In California, you have the right to go to work and do your job while free from sexual harassment. You also have the right, if you are the target of sexual harassment, to seek to stop that harassment without suffering reprisals from your employer. That means that you are entitled to say “no,” to complain to your employer’s HR department or to file a harassment lawsuit or claim with the Department of Fair Employment and Housing (DFEH) and your employer cannot punish you for it. That means no firing you, no demoting you, no reassigning you to less desirable work and no cutting your hours. If your employer does engage in these types of actions, you should reach out to an experienced Oakland employment attorney promptly, because those punishments may mean that your employer is liable to you for impermissible retaliation.

S.E. was a teenager working at a drive-in restaurant whose lawsuit presented a case of exactly that sort of retaliation. According to the employee, who was still a minor, her manager made sexual advances toward her and, when she did not accept those advances, he altered the teen’s work schedule to reduce her hours (and, by extension, reduce her income.) The teen informed the employer of the manager’s advances and his retaliation against her after she said no. The employer fired the teen.

That, of course, is one of every workplace sexual harassment target’s nightmares, isn’t it? Too many victims look at their harasser and think that he has far more “pull”/”juice”/power/etc. within the organization than they do, and so they suffer in silence, fearing what would happen to them if they did dare to speak up.

What California law says about workplace retaliation

If you suffer an adverse action at work (up to and including termination) in a manner like this teen did, you may have multiple bases for compensation. In addition to banning workplace sexual harassment, the law also bans something called “retaliation.” Retaliation in this context can occur in many different ways. Section 12940(h) of the California Government Code says that an employer cannot retaliate against an employee because she opposed sexual harassment and also cannot retaliate against an employee who filed a complaint about sexual harassment.

In order to establish what the laws calls a “prima facie” case of retaliation in violation of the Fair Employment and Housing Act (FEHA) – which is what you need in order to take your case to trial – you have to show that you engaged in a “protected activity,” that you suffered an adverse employment action and that your activity and the adverse action were “causally connected.” Rejecting a harasser’s advances is a protected activity. So is escalating the problem to HR or others in authority at your place of employment. Filing a claim with DFEH or the courts is protected activity, too.

S.E.’s case also demonstrates that there is more than one legal way to pursue compensation for retaliation. Asserting multiple claims can often be a very helpful trial strategy because, if you lose on one or two claims, the additional claims you asserted may serve as alternate avenues for you to get the recovery you need. The federal appeals court that heard S.E.’s case ruled that she could seek compensation for the improper retaliation in three different legal ways: (1) impermissible retaliation in violation of federal discrimination law (Title VII), (2) impermissible retaliation in violation of California discrimination law (FEHA) and (3) “wrongful termination in violation of public policy premised on retaliation.” Each of those claims, according to the appeals court, was distinct from one another and none were duplicative of each other, so the law allowed S.E. to go forward on all three.

No one should have to endure an employment situation where you perpetually dread or fear going to work due to sexual harassment, and you shouldn’t have to fear for your job just because you took action to stop the harassment. If you’ve been the target of workplace sexual harassment and/or retaliation, reach out to The Law Offices of Stephen M. Fuerch. Attorney Fuerch is a knowledgeable Oakland employment attorney with many years of experience providing a voice within the legal system for victims of workplace harassment and discrimination. To learn more, contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

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