After these basic elements are established (a “prima facie case”), the employer’s defense is to offer a legitimate reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, a presumption of retaliation no longer exists and the burden shifts to the employee to prove intentional retaliation.2

Under California law, California government agencies and courts will presume that an employer retaliated against an employee if the employer took an adverse action within 90 days of the employee’s protected activity. Employers may still rebut this presumption by showing that the adverse action was motivated by a legitimate, nonretaliation reason.

In a significant retaliation case from the California Supreme Court, the court ruled that an employee who refuses to carry out an order they reasonably believe to be discriminatory is protected from retaliation even if they do not advise their employer of that belief.

In Yanowitz v. L’Oreal USA, Inc., a supervisory employee was instructed by her supervisor to fire an unattractive female sales employee and replace her with someone “hot.” Although she asked the manager to provide a justifiable reason to fire the employee, she never said that firing the saleswoman would be unlawful discrimination. When the supervisor did not comply with her manager’s instruction, her previously highly rated performance came under severe scrutiny and criticism. She eventually took a leave of absence for stress and never returned to work.

The California Supreme Court ruled that there need not be a specific complaint about unlawful discrimination. Her reasonable belief that her manager’s demands were discriminatory combined with the demand for a justifiable reason to fire the employee was sufficient notice to her manager. The heightened scrutiny of the employee’s performance accompanied by both public and private criticism materially altered her employment conditions, which created employer liability for the altered work environment.

The California Supreme Court also said that the court could consider all retaliatory acts, including those that occurred too long ago to be independently litigated, if they were part of an ongoing pattern of related conduct.3

Proving Retaliation With Circumstantial Evidence

There is no requirement that specific, direct evidence conclusively proves that an employee was fired for filing a sexual harassment complaint. Circumstantial evidence, a series of events or actions taken together, can sufficiently establish employer liability in a claim for retaliatory discharge.

If an employee files a harassment complaint and is demoted or terminated soon afterward, a reasonable person would infer retaliation against the employee for exercising their legally protected rights. The mere proximity in time of a protected act and an adverse employment action, such as terminating employment, can be evidence of retaliation.4

Courts will look at all of the facts surrounding the employee’s termination or demotion, including timing of the action, performance reviews and the company’s response to the complaint, to determine if the employer acted unlawfully.5

Examples of Retaliatory Conduct

In Taylor v. City of Los Angeles Dept. of Water and Power, an employee served as a supporting and material witness in an Equal Employment Opportunity (EEO) complaint against his employer. Over the following seven months, he met with the EEO office, provided information about the complaint, offered testimony that opposed discrimination and actions taken against his colleague, and complained of retaliation from his own supervisor.

After each action related to serving as a witness, the employee was stripped of his supervisory position, threatened with termination of his alternative work schedule, barred from completing supervisory certification courses, called a “troublemaker” in front of his subordinates and other supervisors, excluded from meetings and information necessary in the performance of his duties and denied an advancement opportunity. This continuous course of conduct culminated in the employee receiving a lower rank on his civil service examination, even though he had been groomed for a higher position up to the point of his protected activity.

The court found that the employer retaliated against Taylor by demoting him and taking away opportunities for advancement. The court also found that the employer and supervisor’s behavior would deter other employees from complaining or assisting in enforcement of discrimination and retaliation protections. The supervisor’s actions, combined with the timing of each action, demonstrates the required “causal link” between the protected activity in which the employee took part and the employer’s and supervisor’s inappropriate actions. This link was sufficiently strong to support liability against the employer.6

In Patten v. Grant Joint Union High School Dist., a California appeals court ruled that a school principal’s disclosure to legislative personnel about a school district’s use of blank “transfer of funds” forms was whistleblowing. The principal was entitled to a trial to determine if her lateral transfer from one school to another constituted a retaliatory adverse employment action.

The court was persuaded that her material responsibilities were significantly diminished when she was transferred from a challenging assignment at a large underperforming school to a small school with high-achieving students and more parental support. The court found that the transfer could be an adverse employment action even though the employee’s wages, benefits and duties were the same.7

Proving Whistleblower Retaliation

Proving retaliation under California’s whistleblower statute, Labor Code section 1102.5, is different than proving retaliation under the Fair Employment and Housing Act (FEHA).

The California Supreme Court clarified this issue in a 2022 opinion. Prior to its decision, to prove retaliation under section 1102.5, some courts applied the evidentiary standard described above used in discrimination and retaliation cases under the FEHA and federal discrimination law cases, the so-called McDonnell Douglas standard, named after the Supreme Court case that established the standard. Under the McDonnell Douglas framework, if an employer can show that they had a legitimate business reason for the challenged adverse employment action, then the burden of proof ultimately shifts to the employee to show that the legitimate reason is only a pretext for discrimination/retaliation.

In Lawson v. PPG Architectural Finishes, the Supreme Court said that was the wrong standard to apply in whistleblower retaliation claims. Instead, courts should be applying the standard contained in Labor Code section 1102.6, which provides that once an employee establishes that a whistleblower activity was a “contributing factor” to the alleged retaliation, then the employer has the burden to demonstrate by “clear and convincing evidence” (a high evidentiary showing) that the employer’s action “would have occurred for legitimate independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”8

In other words, the employer has the ultimate burden to prove they would have taken the action even if the employee had not complained. This is a higher standard than the McDonnell Douglas test, making it easier for employees to establish their claims and harder for employers to defend.

The Supreme Court’s ruling was particularly relevant to employment law litigation and whistleblower evidentiary standards, but it’s also a good reminder for employers to ensure they’re observing best practices in the workplace when it comes to whistleblower complaints and retaliation because an employer’s defense in court is built on the evidence stemming from its policies and practices in the workplace.

1. Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803 (1999); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)