Terminating the Employment Relationship

timing is not suspicious and that there is sufficient evidence to support the termination. Employees often claim negative performance evaluations and/or discipline are retaliatory rather than legitimate criticisms of workplace performance. As long as an agency can prove the criticisms are legitimate (i.e., not pretextual), it can prevail in a retaliation action. b. Title VII Title VII also prohibits retaliation against an employee for opposing any practice that violates Title VII or for making a charge or participating in any investigation, proceeding or hearing under Title VII. 40 For the purpose of Title VII, an employee is anyone with whom an employer has an employment relationship, i.e., any individual appearing on the employer’s payroll. 41 Title VII also protects job applicants. 42 In one Title VII retaliation case, the Ninth Circuit Court of Appeals held that an employee had established a prima facie claim of retaliation where she showed that she had been fired only nine days after complaining of gender discrimination and wage disparities between male and female employees. 43 In Burlington Northern and Santa Fe Ry. Co. v. White , 44 a railroad employee sued the railroad under Title VII for sex discrimination and retaliation. The Supreme Court held that unlike the anti-discrimination provision, which is limited to actions that affect employment or alter workplace conditions (e.g., hire, discharge, compensation, etc.), the anti-retaliation provision of Title VII is not limited to traditional workplace actions. Rather, Title VII’s retaliation provision covers those employer actions that are “likely to deter” a reasonable person from making a complaint of harassment or discrimination. 45 Thus, actions such as making an employee do less desirable job duties could support a Title VII retaliation claim. 2. R ETALIATION FOR T AKING P ROTECTED L EAVE The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), the Healthy Workplaces, Healthy Families Act of 2014 (aka “Paid Sick Leave law) and the pregnancy disability leave laws under the California Fair Employment and Housing Act contain anti-retaliation provisions, which prevent employers from terminating an employee for use of protected leave. 46 Consequently, employers must be aware of an employee’s leave history when making a decision to terminate and be able to show that a decision to terminate had nothing to do with the employee’s use of protected leave. 3. F REE S PEECH R ETALIATION Private sector employers have broad discretion to terminate employees whose speech conflicts with a company’s organizational mission. That is not necessarily the case for public employers. Government employees have limited First Amendment rights in the workplace. In Waters v. Churchill , 47 the Unites States Supreme Court held that before a public employer may discipline an employee based on what the employee may have communicated verbally, in writing or by action (i.e. picketing), the employer may be required to conduct an investigation and weigh the competing interests. This duty to investigate arises when an employer is aware or should be

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 30