What Is the Difference Between Retaliation and Unfair Treatment in a California Workplace?

All retaliation is unfair treatment in the workplace, but not all unfair treatment is retaliation. The primary difference between retaliation and unfair treatment in the California workplace is the presence of unlawful conduct. Unfair treatment, although often morally reprehensible, is not always illegal. On the other hand, retaliation against an employee always has legal consequences for an employer.

With a clear understanding of the difference between unfair treatment and retaliation, you can protect your rights in the workplace and have a better idea of when you have recourse against your employer for unlawful conduct. Below, we delve deeper into the idea of unfair treatment in the California workplace, specifically outlining when unfair treatment crosses the line into unlawful contact. Then, we take a closer look at the different scenarios that might prompt an employer to retaliate against employees in the California workplace.

What Is Unfair Treatment in the Workplace?

At some point in your employment history, you’ve likely experienced unfair treatment at your workplace. Maybe you didn’t get the promotion you deserved because of office politics or your boss played favorites. Nepotism—privileging family members—is another common occurrence in some workplaces. Unfair treatment can also include supervisors and managers who verbally abuse employees by yelling or screaming or falsely accusing employees of violating company policies.

Although the above examples result in frustration and sometimes anger for employees, unfair treatment is not illegal. California is an ‘at-will‘ employment state. At-will employment is a legal description of the relationship between an employer and an employee. In at-will employment states, employers can terminate an employee at any time without reason and an employee can leave a job for no reason; neither party has legal consequences. Additionally, employers can also demote, transfer, and discipline an employee without legal consequences.

Yet, even in employment-at-will states, like California, employers cannot take adverse action against an employee for illegal reasons. In these cases, unfair treatment becomes unlawful conduct.

When Does Unfair Treatment in a California Workplace Become Unlawful Conduct?

Title VII of the Civil Rights Act of 1964 protects all workers in the United States from discrimination based on race, color, sex, religion, or national origin. The United States Supreme Court extended the law to protect gay, lesbian, and transgender workers in June 2020. Further, the Americans with Disabilities Act (ADA) prohibits employers throughout the nation from discrimination based on disability. California employers that discriminate against employees and treat them unfairly based on the above protections are engaged in unlawful conduct.

Additionally, California employees have the right to file a complaint when their employers are breaking the law when they treat them unfairly. Federal law also protects employees who need to take time off for family or medical reasons under the Family and Medical Leave Act (FMLA). The Whistleblower Protection Act (WPA) protects federal workers in California who report illegal activities in the workplace. In some cases, employers choose to retaliate against workers whose absence falls under FMLA. Similarly, federal employers sometimes retaliate against whistleblowers.

What Is Retaliation?

On a broad level, retaliation refers to the notion of taking revenge against someone for actions that have harmed you or actions of which you don’t approve. In legal terms, retaliation specifically refers to the unlawful and unfair treatment of employees as a response to a protected action. According to the Equal Employment Opportunity Commission (EEOC), employers are engaging in unlawful conduct when they retaliate against employees for:

  • Filing an EEO complaint or lawsuit against an employer
  • Talking with management about discrimination or harassment
  • Cooperating with an investigation about harassment or discrimination
  • Refusing to follow orders that result in discrimination
  • Refusing sexual advances
  • Intervening to protect other employees from harassment
  • Requesting accommodations for religious reasons or for a disability

Whistleblowers also have protection from retaliation and employers cannot discriminate or take unlawful action against an employee who needed time away from work under FMLA.

Filing a Claim Against Your Employer for Unlawful Discrimination or Retaliation

You do not need a lawyer to file a claim against your employer; however, it’s often in your best interest. A lawyer can file a claim on your behalf, protecting your identity. This is especially important for sexual harassment claims and whistleblower claims. Employers, especially specifically targeted members of an organization, can take drastic measures when they feel desperate. An experienced attorney knows the ins and outs of the EEOC claims process and can ensure your meet required deadlines and fulfill criteria.

As a California resident, you can file a claim with the Equal Employment Opportunity Commission (EEOC) or California’s Department of Fair Employment and Housing (DFEH), the state equivalent of the EEOC. DFEH will automatically share information with the EEOC, so you need not report to both agencies. If you are a federal whistleblower or have suffered retaliation as a whistleblower, you must file with the EEOC because the State of California does not have jurisdiction over your claim. Regardless of the situation, you cannot file a lawsuit against your employer before your file a claim with the EEOC. You can begin an  EEOC claim online and make an appointment or you can file a claim with a state or local agency like DFEH.

Contact an Experienced Employment Attorney If You’ve Been a Victim of Unlawful Conduct in a California Workplace

The skilled legal team at Perkins Asbill have the knowledge and resources to advocate for employees who have been victims of unlawful conduct in a California workplace. If your employer has illegally discriminated against you, sexually harassed you, or retaliated against you for taking action against them, you need a competent and diligent lawyer in your corner.

At Perkins Asbill, A Professional Law Corporation, we take pride in client service and holding employers accountable for their illegal practices. Contact us today online or at 916-446-2000 for a confidential case evaluation to determine your eligibility for compensation and learn the best way forward for your individual circumstances.


Dating in the workplace isn’t sexual harassment on its own, and many people who are on the same level enjoy healthy relationship status while working together. That’s often true with two workers from separate teams or departments are dating. But many companies frown on romantic involvement between supervisors and their workers — some even forbid it in policies.

While a supervisor dating a worker isn’t automatically sexual harassment, the possibility of harassment is high once people get romantically involved. Even well-meaning supervisors could unintentionally harass workers if they have romantic feelings for them that are not returned or feel angry about the way a relationship ended.

Even if both parties behave themselves with utmost composure in the workplace during and after a relationship, other problems can arise. If word gets out about the relationship, other employees might believe the person dating the boss is being treated with favoritism. If you are the person dating the boss, you might then experience harassment from others because of your involvement.

Dating and then breaking up with the boss could put you in a position where you feel like you are facing retaliation for your romantic actions, and that retaliation is impacting your job. When someone has hurt feelings and he or she has power over you in the workplace, it can be a bad combination.

While it’s probably best to avoid romantic entanglements with the boss, it’s also true that the heart wants what it wants. Things happen, and a relationship — or lack of one — is not an excuse for unprofessional or illegal behavior on the part of a boss. If you feel like you are being retaliated or discriminated against because of a relationship or emotional tension in the workplace, you have legal options.

Source: Forbes, “Is It Sexual Harassment If I Date My Employee?,” Liz Ryan, accessed Nov. 27, 2015


Employees have a legal right, granted under the National Labor Relations Act, to join together to try to improve their wages or working conditions. Frequently, that results in the attempt to unionize or the decision to join an existing union that already applies to their trade.

However, that doesn’t mean that their employers are going to like it. Put into that situation, it isn’t uncommon for employers to engage in activity that’s generally considered to be “union busting.” One tactic that large employers sometimes use is simply closing down the entire department or store where the unionizing activity is taking place and dispersing the pro-union employees elsewhere (or letting them go).

For example, the puppeteers who have been a part of the Disney Junior show since it opened in 2003 at the California resort, say that the sudden end to their employment is directly related to their decision to join the American Guild of Variety Artists, a union.

The Guild has already filed two lawsuits against Disney in 2015, alleging that the company reduced employee hours and took other retaliatory action against its puppeteers after they signaled they might unionize. Disney ultimately settled the issue and gave the employees back pay.

Now, Disney claims that it’s time to end the puppet show altogether. The company claims the abrupt ending is a result of a need to “make changes to provide compelling reasons for our guests to visit.” The Disney Junior show itself will return — just without any puppets or the unionized puppeteers.

Unfortunately for the puppeteers, while the timing is suspicious, Disney does have a history of abruptly closing old shows and replacing them with new ones — a fact that might insulate them if it comes to a lawsuit. It does seem strange that the Disney Junior puppet shows in other Disney parks are continuing without interruption.

Any concerted activity that might result in a union is generally seen as bad for the employer — especially if the employer is interested in maintaining conditions the way that they are and doesn’t want to negotiate.

When an employer retaliates against you for a legal, protected activity, like attempting to unionize, an attorney can provide information on your next legal steps.

Source: National Labor Relations Board, “Employee Rights,” accessed March 10, 2017


How badly can an employer want to retaliate against a whistleblower?

Apparently, pretty badly, if the $10 million spent defending the wrongful termination claim of a Department of Energy employee is any indication. The process is known as “scorched earth litigation” and it is designed to intimidate and frighten most people into backing down off of a lawsuit and moving on, rather than staying embroiled in a case that can drag on year after year.

In this case, the former Department of Energy employee, who worked as a computer technician in a lab in northern California responsible for maintaining the United States’ stock of nuclear weaponry, testified on behalf of a colleague who was a victim of sexual harassment.

Subsequently, the computer technician was fired for making a few local calls from her office, which cost the Department of Energy a grand total of $4.30.

She sued for wrongful termination and retaliation, and the Department of Energy eventually lost—but not until the California lab dragged the process out over 8 years and spent $10 million in taxpayer dollars trying to beat her.

Scorched earth litigation involves more than a merely aggressive approach to a lawsuit. It usually involves tons of motions, depositions, document requests and pre-trial disputes, all as a way of trying to make the other party want to give up or settle for a much lower-than-necessary amount just to be done with the whole thing.

While this tactic can be difficult to withstand, plaintiffs should keep in mind that attorneys who specialize in whistleblower lawsuits and retaliation claims have probably seen the tactic more than once. So have judges. In response, the courts can take a defendant’s scorched earth tactics into consideration when determining any final award, upping the total dollar amount in order to cover both the plaintiff’s attorney’s fees and court costs.

The goal of the court is to level the playing field and make it possible for anyone with a claim that has merit to successfully bring a retaliation case against an employer—even one that seems like it holds all the money and power.

If you feel that you were wrongfully terminated in retaliation for some part you played in a whistleblower’s complaint, don’t allow a large employer with resources to frighten you out of asserting your rights. Consider talking to an attorney today.

Source: Newsmax, “Report: Dept. of Energy Spent $10 Million on Lawsuit Over $4.30,” Jason Devaney, Jan. 30, 2017


For a lot of people, filing a formal discrimination complaint with the Equal Employment Opportunity Commission or suing an employer for discrimination is often a desperate measure after every other avenue of relief has been exhausted.

It usually doesn’t end up being a comfortable situation for anybody involved, which is why it isn’t unusual for an employee in that situation to resign and move on if he or she is able, no matter how the discrimination complaint or lawsuit turns out.

If that’s your situation, it’s important to remember that your protection against retaliation doesn’t end just because you’ve severed your working relationship with your former employer.

This is critical information to know because your future reputation and ability to move forward in your field could be affected if your ex-employer decides to unload his or her frustration at the first opportunity after you’re out the door. That first opportunity might come along quickly—especially if you leave before finding new employment and a prospective employer calls for a reference.

For some people, the damage an angry former employer can do can be extensive. If you work in an industry that has a relatively small community of people in it, like a specific area of medical research or a branch of academia, a prior employer’s toxic comments about you to others in the field can quickly poison your prospects everywhere.

What actions can be viewed as retaliation by a former employer?

— A negative reference to a future employer based on false or misleading information

— Spreading false information about you to others in your field in order to damage your reputation

— Telling a prospective employer who calls for a reference that he or she can’t have one because you have a lawsuit pending

— Refusing to give a reference at all, including verifying dates of employment, for no other reason than to make it difficult for the former employee to prove his or her work history

In general, if you have to file a post-employment retaliation claim, the court will take a hard look at the ex-employer’s intent. If it seems like your previous employer’s intentions were to retaliate against you and negatively affect your employment prospects or life in some way, that will usually guide the court’s decision.

If you believe you’ve become the victim of post-employment retaliation over a discrimination complaint, the advice and guidance of an attorney can be very beneficial.

Source: FindLaw, “Supreme Court Holds Former Employees Are Protected by Title VII’s Anti-Retaliation Provision,” accessed Dec. 29, 2016


If you are caring for a loved one who is seriously ill or disabled, you know that it requires many hours and tireless dedication. This obligation will likely conflict with your work schedule and you may feel that your job is in danger due to the amount of time that you have missed.

Thankfully, laws such as the Family and Medical Leave Act (FMLA) protect your right to care for a loved one without fear of retaliation. Despite the presence of federal laws to prevent it, California employers may ignore these regulations and unlawfully dismiss an employee for missing significant time from work, despite that individual being well within the boundaries of employee rights.

Your rights under the Family and Medical Leave Act

According to the FMLA, eligible employees in certain situations have the right to unpaid leave without fear of losing their jobs. The maximum amount of protected time available under this law is 12 weeks within a 12-month period and is available under the following circumstances:

  • The birth of a child or any care needed by the child in the first 12 months of life
  • The placement of a new foster or adopted child into the worker’s family
  • A serious health condition that makes it impossible for the worker to do his or her job
  • Caring for a parent, spouse, child or close family member with a serious illness
  • Situations that would require one to miss work in order to address issues involving an active duty military spouse, child or parent

It is illegal for an employer to fire or retaliate in any way against an employee who uses his is or her rightful leave per the FMLA.

Protect your rights against employer retaliation

If you were fired, threatened with termination or faced retaliation because you took leave to care for a loved one, you have the right to take legal action. Unlawful dismissal is grounds for a civil claim, and it is important to protect your rights by securing the help of an experienced attorney as early as possible. An experienced lawyer can determine if you have grounds to proceed with legal recourse and guide you through a complex and potentially contentious wrongful termination.


In many cases, if you fail to show up for work or simply don’t do your job to agreed upon parameters, your employer can fire you or take other disciplinary action against you. There are some actions that you can take on the job that are protected by federal or state law, though, and your employer cannot retaliate against you for those actions. That means your employer cannot take disciplinary action, reduce your pay or fire you if you engage in some of the following activities.

You are protected when making reports about discrimination, safety or financial fraud to the authorities or appropriate government agencies. This is known as whistleblowing, and if you do it in good faith, then you are protected by the law.

You are protected when answering questions asked by authorities or federal investigators in such matters. Note that there is a line here; you are not necessarily protected if you talk to others, such as the media, about such matters. You are, however, protected if you bring up issues to supervisors, human resource departments or other appropriate people in the chain of command and reporting within your company.

You are protected if you resist sexual advances or report harassment of any kind to your supervisor. You can’t be fired because you didn’t agree to a sexual relationship or a date with your boss.

Other activities that are protected could include asking for working accommodations because of religious affiliation or disabilities or asking supervisors about compensation when unfair pay practices are suspected. Some of these activities have more gray area than others, so if you think you have been engaging in protected activities and have been retaliated against, it’s important to understand the law and your rights. Our firm works with you to understand your case and provide advice about the best next steps.


Federal laws protect most employees from being fired as an act of retaliation on the part of the employer. This protection only comes into play in certain circumstances, though. Here are some of the things that you can’t be legally fired for.

You can’t be fired because you participated in a lawful investigation of your employer or any worker in the company. This includes being a witness at a hearing, whether you were a witness for or against the employer. As long as you tell the truth as you know it in good faith, the employer cannot retaliate against you even if the testimony you provided was not in the company’s best interest.

You also can’t be fired for reporting illegal or unsafe issues in your workplace. Numerous federal or other regulatory agencies have procedures in place for you to report issues or potential issues such as fraud, violations of safety rules or discrimination in the workplace.

Your protection isn’t limited to not losing your job. Employers can’t reduce your pay, change your position or otherwise discipline you solely because you engaged in one of the protected actions above. If they do, then you have a potential basis for a lawsuit of your own, especially if you were fired. Being let go because you reported one of these types of issues is often a sign of wrongful termination.

To support a lawsuit for wrongful termination or retaliation, you have to be able to prove you were involved in a protected activity. You also have to show that you were let go solely because of that involvement. Many companies will try to show that you were let go for other reasons, making it important to have an experienced professional on your side.

Source: FindLaw, “Retaliation and Wrongful Termination,” accessed Sep. 16, 2016


If you report to your supervisor or employer that you have been discriminated against or sexually harassed, then the employer is not allowed to retaliate against you. Retaliation includes activities that impact your employment or pay if those actions were taken solely because of your report.

Once you make a report, the company usually engages in an investigation. You might also report issues to outside agencies or authorities, and outside investigations might take place. In some cases, the investigations might deem that the issue was not harassment or discrimination. Even if this is the case, you are still protected against retaliation.

An employer cannot fire you or make negative changes in your work relationship simply because you filed a claim that an investigation didn’t uphold. You actually still have legal rights to file a lawsuit, too. Just because an internal investigation deemed no harassment occurred doesn’t mean harassment wasn’t present, for example.

Sometimes, an employer makes a decision that impacts your work even before an investigation is finished. In a good-faith effort to solve the situation, for example, the employer might move you from your position and into another so you aren’t working directly with certain individuals anymore. But if this is a negative move for you, you might want to talk to your employer or reach out to an employment lawyer. It could be unintentional retaliation. The rule is usually that any type of movement related to a claim of harassment should involve the person who is accused of doing the harassing, not the potential victim.

Employment law can become complex with regard to these matters. If you feel you are being retaliated against, consider working with an experienced lawyer to understand what your options are.

Source: FindLaw, “Workplace Retaliation,” accessed Aug. 26, 2016


In the context of employment law, adverse actions are a type of retaliation against workers. The law prevents employers from taking retaliatory action against workers who report or otherwise oppose an illegal action such as discrimination practices. The purpose of the law is to protect the job and opportunities of such workers in the face of an employer or supervisor who might be upset about a report or other action.

One of the most extreme examples of an adverse action is termination. An employer is not allowed to fire or lay off a worker simply because that worker reported or opposed discrimination in the workplace. Employers can’t otherwise cause a worker to not have a job for the same reason, and that includes failure to promote or hire a worker solely because of his or her actions with regard to opposition of discrimination.

Employers cannot take actions against employees that are threatening in nature to punish the employee for his or her report of discrimination. They also can’t place the employee under any sort of special surveillance or bring civil or criminal allegations against the employee that are otherwise unfounded. This type of activity is seen as the employer trying to deter people from speaking up for civil rights.

In short, the employer shouldn’t treat an employee differently from other workers simply because that employee reported discrimination or otherwise spoke against discrimination in the workplace. However, there are a number of actions that aren’t necessarily considered adverse actions. A petty slight or stray comment would not be considered an adverse action. A worker couldn’t bring a lawsuit or other action simply because he or she felt “snubbed” in the workplace.

Understanding whether you are protected against adverse actions and whether adverse actions are being taken against you can be difficult. Consulting with a third-party legal professional can help you better understand such issues.

Source: U.S. Equal Employment Opportunity Commission, “Facts About Retaliation,” accessed July 15, 2016