Preventing Workplace Harassment, Discrimination, and Retaliation

qualifications, life insurance coverage, mortgage lending, and participation in state-funded or state-administered programs.

J. M ILITARY AND V ETERAN S TATUS Since 2014, “Military and Veteran Status” has been included as a protected category under California’s FEHA. The FEHA defines “Military and Veteran Status” to mean a member or veteran of the US Armed Forces, US Armed Forces Reserve, or United States or California National Guard. 57 It also protects individuals who an employer perceives to be a veteran or member of the military and individuals who are associated with someone who is a veteran or member of the military. 58 Employers may still, however, allow an employer to inquire about Military and Veteran status in order to determine eligibility for Veterans’ preference points in hiring. K. O PPOSITION TO U NLAWFUL C ONDUCT Discrimination, harassment, or retaliation based on opposition to such conduct is itself unlawful retaliation. For these protections to apply, an employee need not say the word “harassment” when reporting the conduct. 59 Because it is difficult for a public employee to know if the complained-of conduct is “unlawful,” all that is legally required is a sincere, good faith and reasonable belief that the complained-of conduct is unlawful. Thus, even if no unlawful conduct occurred, a public employer may not retaliate against an employee for complaining about conduct which the employee sincerely and reasonably believes is unlawful. 60

It is also unlawful to harass or take any adverse action against an employee who supports or associates with a co-worker who has complained about unlawful harassment or discrimination. 61

Examples of Protected Activity:

 An employee complained about the sexually offensive conduct of an outside consultant whose seminar she had been required to attend. Although the employee might have been wrong as to whether the conduct was illegal, she had a good faith and reasonable belief that it was. As a result, her employer is prohibited from retaliating against her for complaining.  An employee refused to follow the orders of her supervisor to fire a subordinate and replace the subordinate with “someone hot.” 62

L. A SSOCIATION /P ERCEPTION The anti-discrimination laws also prohibit discrimination and harassment of an employee or job applicant because of that individual’s association with a person of a protected class. 63 An employer may also be liable for discrimination if it mistakenly perceives an employee to be a part of a protected class and makes a personnel decision based on that mistaken belief. An

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 16