One of the plaintiffs’ bar’s perennial favorite claims is the amorphous and, hence, ubiquitous retaliation claim. Over the years, the law under Title VII has made these claims more difficult for plaintiffs to bring. At the same time the federal courts interpreting Title VII have made the plaintiffs’ burdens harder, California courts interpreting the Fair Employment and Housing Act have made them easier to bring. So what does a plaintiff have to show in proving retaliation and what is the good faith belief requirement?
Let’s say my name is Sue and I believe my employer, Targett LLP, is engaging in discrimination that violates Title VII. The conduct that I believe violates Title VII is the annual presentation of performance reviews to the Targett LLP staff, including me. I find the whole process antagonistic and upsetting. In an act of protest against this unlawful discrimination, I refuse to submit the employee portion of the performance evaluation in which my employer asks me to rate my own performance. When my supervisor raises this issue (and a few others) with me and tells me that I will be fired if I do not participate in the annual performance review process, I continue to stand up to her and resist preparing the form. After Targett LLP fires me, I file a charge of discrimination claiming that it terminated me in retaliation for my protected activity – opposing the company’s discriminatory conduct.
Will Sue win? (You have a 50 percent chance of being right.)
Under Title VII an employee can bring a retaliation claim when she opposes unlawful conduct or participates in an EEO Charge or related process and suffer an adverse employment action as a result. The law specifically prohibits employer retaliation “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.” But what if, as in Sue’s case, they opposed unlawful conduct that is not really unlawful, such as the annual performance review process (assuming it is conducted in a non-discriminatory manner)? Most federal courts are in agreement that the employee must have a good faith honest belief that the conduct was unlawful (Sue decides this part), but to balance that out, the employee’s belief must also be objectively reasonable (we decide this part). Here, Sue has a good faith honest belief that performance reviews are unlawful. After all, she is not a lawyer, so how could we expect her to really understand the contours of what is and is not lawful? As to the second part of the analysis, however, is her belief objectively reasonable? This is where Sue loses. A jury of twelve of her peers, who all have had at least one performance review in their lifetimes, would find that Sue’s belief that the entire practice is unlawful is not reasonable. Query whether we have any reasonable people in Los Angeles, but that is a debate for another day.