The California Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice to terminate or otherwise discriminate against an employee because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. Gov. Code, § 12940(a).

Section 12940(h) makes it unlawful for an employer to retaliate against a person “because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

A prima facie case for retaliation requires a plaintiff to show that:

1. she engaged in a protected activity,
2. the employer subjected plaintiff to an adverse employment action, and
3. the protected activity and the employer’s adverse action were causally connected

Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.

The activity “protected” by this statute is opposition to “practices forbidden” by FEHA or the filing of a complaint, testimony, or the provision of assistance in any FEHA proceeding. Gov. Code, § 12940(h).

Whether an employee has suffered an adverse employment action is a required element. Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1380 (“Critical to an inquiry regarding a retaliation claim arising under FEHA is whether the plaintiff suffered an ‘adverse employment action.’”)

“Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of Government Code section 12940, subdivision (a).” Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373 (citations omitted.)

A causal link “may be established by an inference from circumstantial evidence, such as the employer’s knowledge that the employee engaged in protected activities and proximity in time between the protected action and allegedly retaliatory employment decision.” Morgan v. Regents of Univ. of Cal. (2000) 88 Cal.App.4th 52, 69 (citations omitted).

Non-employer individuals are not personally liable for their role in retaliation. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173.