Cal-Peculiarities: How California Employment Law is Different - 2023 Edition

180 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com unlawful discrimination.277 In California it’s different. Here the employee’s opposition need not be overt. Plaintiffs who disagree with employer directives they believe to be discriminatory need not express that belief; all they must prove is that the employer knew the plaintiff thought the directive was discriminatory. Thus, the California Supreme Court permitted a female manager to proceed on a retaliation claim in which her “opposition” activity was simply resisting a male manager’s order to fire a female cosmetics sales clerk for not being pretty enough.278 By the Supreme Court’s view, the plaintiff had engaged in protected activity even though she did not report or protest the offensive order to fire the sales clerk, but rather simply said she needed more “justification.” It was enough that she reasonably believed that the order to fire the clerk was discriminatory and that the employer, “in light of all the circumstances,” was aware of that belief. California has also expanded the scope of protected employee activity to include an employee’s request for a reasonable accommodation with respect to either religious accommodation or disability accommodation.279 California courts do seem to recognize that a plaintiff’s oppositional activity, to be protected, must have been in good faith; the law does not protect knowingly false charges.280 Nor does the FEHA protect either lying or withholding information during an employer’s internal investigation of a discrimination claim.281 6.11.2 Broad definition of adverse employment action The California Supreme Court acknowledges that an adverse employment action “must materially affect the terms, conditions, or privileges of employment to be actionable” under the FEHA,282 but broadly defines adverse employment action for purposes or retaliation to include “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” The Supreme Court has thus permitted a retaliation plaintiff to establish an adverse employment action by citing a wide variety of intermediate personnel management decisions, such as (1) unwarranted negative performance evaluations, (2) a refusal to allow the plaintiff to respond to allegedly unwarranted criticism, (3) unwarranted criticism voiced by a manager in the presence of the plaintiff’s associates, (4) a “humiliating” public reprobation by a manager, and (5) a manager’s solicitation of negative feedback from the plaintiff’s staff.283 By this approach, the “totality of the circumstances” could show an adverse employment action against the plaintiff even if she never suffered a formal job detriment. 6.11.3 Broad application of the continuing violation doctrine Under federal law, the continuing violation doctrine, properly understood, applies only to harassment cases and does not apply to discrete personnel management decisions.284 In California it’s different. The California Supreme Court, criticizing federal law, has rejected an employer’s contention that certain retaliatory acts preceding the limitations period were time-barred. The Supreme Court concluded that limiting employees to evidence of discrete acts within the limitations period would undermine the goals of encouraging informal resolution of disputes and avoiding prematurely filed lawsuits. Under the Supreme Court’s broad view of the continuing violation doctrine, an employer can be liable for acts that preceded the limitations period if they are sufficiently linked to unlawful acts that occurred within that period. And under this approach, the statute of limitations begins to run only when the continuing course of conduct comes to an end (such as by the employer’s cessation or by the employee’s resignation), or when the employee is on notice that further efforts to end the unlawful conduct would be in vain.285

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