On December 9, 2009, the California Court of Appeals decided the case of George v. California Unemployment Insurance Board of Appeals (2009) 179 Cal.App.4th 1475. In that case, a jury found that a state agency had unlawfully retaliated against George, an employee, in violation of Section 12940(h) of the California Fair Employment and Housing Act (“FEHA”). After George filed an administrative complaint alleging gender discrimination, a co-worker told George that she would regret continuing her complaint that her male co-workers were receiving preferences on travel assignments. The co-worker was later promoted to a supervisory position and made numerous allegations of misconduct against George. After filing a civil service complaint, George filed a civil action in Fresno County Superior Court alleging that the misconduct charges were retaliatory.
The Court addressed the need for a causal link to the adverse employment action and singled out the California Supreme Court decision in Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028. The Court said that George was required to show that the suspensions had resulted from retaliatory animosity and not from other causes. In other words, the Court said that there must be a causal link between the protected activity (reporting an allegation of sexual harassment) and the employer’s action.
The employer related to Yanowitz v. L’Oreal, arguing that an employee must show that his or her protected activity resulted from a reasonable, good faith belief that the employer acted unlawfully. The specific claim in the case was that the employer had discriminated against female administrative law judges when making travel assignments. George argued that Yanowitz’s good faith reasonable belief test did not apply to the “participation clause” of the FEHA’s retaliation provisions. The FEHA makes it illegal for an employer to retaliate against an employee who has opposed any discriminatory action or who has filed a complaint, testified, or assisted in a FEHA proceeding (the “participation clause”). George argued that his position with the Department of Fair Employment and Housing (“DFEH”) was a protected activity covered by the FEHA participation clause and that he was not required to show that he acted reasonably and in good faith when he filed your demand. charge before the DFEH.
The Court of Appeals agreed with George in saying that the agency had misapplied Yanowitz. The Court explained that the issue in Yanowitz was whether refusal to follow an employer’s directive, based on the mistaken belief that the directive violated the FEHA, was a protected activity under the FEHA. The Court raised the question of whether the employee’s failure to comply with the employer’s order constituted opposition to discriminatory practices (FEHA-protected activity), if the order is later found to be lawful. Yanowitz concluded that such activity was protected if the employee acted in good faith and with a reasonable belief that the employer’s order (the action he objected to) was discriminatory. The Court explained that Yanowitz did not suggest that an employee have to show that his charge to the DFEH was filed with a reasonable, good faith belief that the charge was well founded. The Court held that the employer’s reading of Yanowitz improperly attempted to insert a new element into a retaliation claim. Thus, the Court of Appeals held that the employee did not have to demonstrate a reasonable, good faith belief that the charge was well founded, particularly where the claim of retaliation was based on alleged conduct expressly identified by the statute as protected. , such as the presentation of DFEH has charge.
