The Courts Continue To Expand The Reach Of Retaliation Claims
We continue to see an expansion of retaliation claims filed by current and former employees and the courts are granting new rights to such complaining employees.
In August 2005, the California Supreme Court in Yanowitz v. L’Oreal USA, Inc. established a "materiality" test for deciding what rises to the level of an actionable retaliatory employment action under California’s Fair Employment and Housing Act ("FEHA"). Under the "materiality" test, a retaliatory action must materially affect the terms and conditions of employment in order to be actionable. One year later, in August 2006, the United States Supreme Court in Burlington Northern & Santa Fe. Ry. Co. v. White established a more lenient test, the "deterrence" test, for retaliation cases under Title VII (which is substantially similar to California’s FEHA). Under the "deterrence" test, a retaliatory action need not affect the terms and conditions of employment and must only dissuade a reasonable employee from making or supporting a charge of discrimination in order to be actionable.
Now the Court of Appeals in Taylor v. City of Los Angeles Dep’t of Water &Power allows a new cause of action under FEHA. The Taylor Court held that FEHA permits a separate and independent claim for failure to prevent and investigate retaliation. FEHA expressly allows a claim for failure to take all reasonable steps to prevent discrimination and/or harassment, but does not contain a separate provision mandating that employers take all reasonable steps to prevent retaliation. Prior to Taylor, California case law was silent on whether the requirement to prevent discrimination and harassment included a duty to prevent and investigate retaliation. The Taylor Court held that retaliation is a form of discrimination and employees may maintain an action for failure to prevent and investigate retaliation under FEHA.
In light of Taylor, employers should treat retaliation on the same footing as harassment and discrimination and should take all reasonable steps to prevent it. Employers should review their policies, procedures, and handbooks to ensure there are effective safeguards to prevent retaliation and procedures to properly handle claims of retaliation. Employers should consider including anti-retaliation training with anti-harassment and anti-discrimination training to supervisors and employees.