In a recent appellate decision from the California First District Court of Appeals, the court held that an employer could be held liable for retaliatory action taken by co-workers and not the company itself. In deciding the issue in favor of the alleged victim, the appellate court agreed that an employer may be found to have engaged in an adverse employment action, and thus liable for retaliation, by permitting fellow employees to punish him or her for invoking their rights. In other words, the court held that an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct. (Kelley v. The Conco Cos. ( 2011) Cal. App. LEXIS 690)
In general, under the law in California, it is an unlawful employment practice for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under the sexual harassment statute, Government Code Section 12940. Typically, in order to establish a case of retaliation under the Fair Employment and Housing Act (FEHA), a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes this, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces evidence of a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to prove intentional retaliation. The ruling above focuses on the second prong, the adverse employment action, and it allows the plaintiff to establish the case if the employer was or should have been aware of retaliatory conduct and participated, encouraged or failed failed to stop it.
Compensation for victims of sexual harassment and discrimination should be an important concern for all Californians. When someone complains of sexual harassment and other employees retaliate, the employer should be held liable if they knew or should have known this was occurring and failed to take remedial action. An Orange County trial lawyer with experience at handling such cases can make a fair assessment of these claims. Mr. Ralph has more than 20 years of experience handling personal injury and sexual harassment cases, including just this type. He can be reached at 714-919-4415 for a FREE CONSULTATION.
Have you or a loved one been a victim of sexual harassment or discrimination?
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