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 firstname.lastname@example.org.
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?