Preventing Workplace Harassment, Discrimination, and Retaliation

about his dismissal. If a supervisor uses another employee as a tool for carrying out a discriminatory action, the original actor’s purpose will be imputed through the “tool” to their common employer. Poland v. Chertoff 132 If in response to an employee’s protected activity a supervisor sets in motion a proceeding by an independent decision maker that results in an adverse employment action, the supervisor’s bias will be imputed to the employer if the employee can prove that the allegedly independent adverse employment decision was not actually independent because the biased supervisor influenced or was involved in the decision or decision-making process.

D. O THER A NTI -R ETALIATION L AWS The prohibition against retaliation is not limited to the anti-discrimination provisions set forth in the FEHA, Title VII, the ADEA, or the ADA. In addition to the protections and prohibitions afforded by those statutes, anti-retaliation laws also cover prohibitions against employer conduct ranging from fraud to environmental violations. Accordingly, the scope of retaliation liability is quite broad, protecting employees who expose or complain about a wide range of employer misconduct, from mismanagement of funds to hazardous conditions. Some of these prohibitions are reviewed briefly below to provide employers with a general understanding of the wide array of factual scenarios that can give rise to a retaliation claim. 1. C ONSTITUTIONAL F REE S PEECH R IGHTS While both the California and U.S. Constitution’s guarantee the right to free speech, the U.S. Supreme Court and subsequent cases have held that not all speech is protected. For example, when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. 133 On the other hand, if an employee speaks out against discrimination suffered by others, any use of state authority to retaliate against that employee can give rise to a cause of action under the First Amendment. 134 This is because discrimination in employment is undoubtedly a matter of public concern, constituting protected speech.

Employers may discipline employee speech if the speech is:  Insubordinate;  Unnecessarily disruptive;  Delivered in a manner that is not designed to fix the perceived problem;  Not a matter of public interest;  Made pursuant to a public employee’s official duties; or

LCW Practice Advisor

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 33