What Is Protected Activity Under Feha and Title Vii?

• Publication year: 2014
• Author: By Mary L. Topliff

What Is Protected Activity Under FEHA and Title VII?

A Survey of Retaliation Cases and Their Practical Implications for Employees and Employers

By Mary L. Topliff

Mary L. Topliff is Principal of the Law Offices of Mary L. Topliff in San Francisco. Her practice focuses on prevention of employment lawsuits through counseling and training. She regularly conducts workplace investigations and compliance audits and can be reached at topliff@joblaw.com.

Eight years ago, the California Supreme Court in Yanowitz v. L'Oreal USA, Inc.¹ expanded the "protected activity" element of a prima facie claim for retaliation under the Fair Employment and Housing Act (FEHA).² The court held that an employee engages in protected activity by refusing to follow a manager's directive so long as the employee had a reasonable belief that the order was discriminatory, even without evidence that the employee informed her employer of this belief.³ Questions abounded as to the practical impact of this ruling. For instance, how could an employer carry out its obligation to investigate complaints of discrimination and harassment if the complaint had not been articulated? And should employers treat insubordinate employees as though they had engaged in protected activity?

This article examines "protected activity" developments under FEHA and Title VII of the Civil Rights Act of 1964 (Title VII) since Yanowitz and identifies practical implications for employees and employers.

Sufficiency of Employee's Opposition to Unlawful Employment Practice

A prima facie claim for retaliation under FEHA and Title VII has three elements: (1) the employee engaged in protected activity by reporting or opposing an unlawful employment practice (the "opposition" clause) or by participating in a hearing or proceeding (the "participation" clause); (2) the employee suffered an adverse action; and (3) there was a nexus between the two events.⁴

In Yanowitz, a regional manager for L'Oreal's fragrance division was ordered by her division manager to terminate the employment of a dark-skinned female sales associate because he did not find the associate sufficiently attractive. The division manager ordered Yanowitz to get someone "hot," preferably a fair-skinned blonde.⁵ Upon discovering that the associate remained employed, the manager reiterated his order to Yanowitz on several occasions.⁶ Although Yanowitz asked her manager for adequate justification for terminating the associate, she never complained to management or Human Resources, nor did she explicitly tell the manager that she believed his order was discriminatory.⁷ Subsequently, she was often criticized in front of her subordinates and received negative performance evaluations. Among other things, Yanowitz sued for retaliation under FEHA.

Setting forth the standard for assessing whether an employee adequately opposed discriminatory conduct, the Yanowitz court stated: "[s]tanding alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination."⁸ The court further noted that an employee's complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice of what it ought to investigate do not establish protected activity. However, if an employee's comments and actions, in their totality, oppose discrimination, then no particular buzzwords are required, nor should employees be forced to complain about discriminatory conduct directly to their immediate supervisors.⁹

The court held that the proper inquiry is whether an employee's communications or conduct sufficiently conveyed a reasonable belief that unlawful conduct had occurred.¹⁰ Based on Yanowitz's refusal to carry out the termination on multiple occasions and her repeated requests for adequate justification, the court determined that a trier of fact could find that Yanowitz's manager knew that she believed his directive was unlawful, and therefore that her refusal was more than simply an unexplained insubordinate act.¹¹

Although not citing Yanowitz, the United States Supreme Court, in Crawford v. Metropolitan Govt. of Nashville & Davidson County,¹² agreed with its premise. The Court noted that an employee may engage in "opposition" activity by taking a stand against an employer's discriminatory practices not only by raising a complaint but by refusing to follow a supervisor's order to fire an employee for discriminatory reasons.¹³ At issue was whether Crawford had adequately engaged in protected activity when she had not complained directly, but had reported a director's sexually harassing behavior towards her when questioned during an internal investigation into rumors of sexual harassment. Two other employees reported being harassed by the director, and soon after the investigation, they were terminated along with Crawford.¹⁴

[Page 13]

The high court held that an employee opposes unlawful conduct when reporting discrimination during an investigation of a complaint made by another employee. It noted that if an employee witness could be penalized with no remedy, then employees would likely keep quiet about Title VII offenses against themselves and others.¹⁵

In 2011, the Court, in Kasten v. Saint-Gobain Performance Plastics Corp.,¹⁶ clarified that a verbal complaint would be sufficient to object to perceived violations of the Fair Labor Standards Act. The Court concluded that a complaint is deemed to be "filed" if it is sufficiently clear and detailed for a reasonable employer to understand it in light of both its content and context as an assertion of rights protected by statute.¹⁷

A review of reported decisions reveals a variety of employee actions found to be adequate "opposition," including: (1) an employee's refusal to comply with a manager's directive to approve another employee's timesheet because that employee had not been at work on the days she claimed;¹⁸ (2) an employee's report to the Dean of the school that he felt that he was the victim of "some kind of weird retaliation" along with a letter to his manager stating that he had been treated unfairly because he was HIV positive;¹⁹ and (3) a police officer's comments to his colleagues that he would tell the truth about racism in the police department.²⁰

However, in the recent decision of Rope v. Auto-Chlor System,²¹ the court upheld a demurrer on the ground that the plaintiff's request for paid leave to be an organ donor (prior to the effective date of Cal. Lab. Code §§ 1508-1513) was not considered opposing conduct prohibited by FEHA, but was merely a request for an accommodation. Moreover, the Northern District of California, in Alhozbur v. McHugh,²² held that an employee's rejection of her supervisor's sexual advances did not constitute opposition for purposes of protected activity.²³

Employee's Reasonable Belief That an Unlawful Employment Practice Occurred

An employee's complaint or opposition must be based on a reasonable belief that the conduct was unlawful. California courts have long held that employees are protected from retaliation even if the employee's reasonable belief is mistaken or a court later rules that the conduct was not unlawful.²⁴ The Yanowitz court found Yanowitz's assessment that the order was discriminatory to be reasonable, since it represented different standards for female versus male sales associates, and she was never asked to fire a male associate for being insufficiently attractive.²⁵

A related standard was articulated by the United States Supreme Court in Clark County School District v. Breeden,²⁶...