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What is preemptive retaliation?

The doctrine of preemptive retaliation permits a whistleblower to bring a claim where the employer retaliates against the whistleblower prior to the whistleblower engaging in a protected act (for the purpose of preventing the whistleblower from engaging in protected conduct).  This doctrine recognizes that retaliatory action taken against an individual in anticipation of that person engaging in protected whistleblowing is no less retaliatory than action taken after the whistleblowing.

A 1995 Eleventh Circuit decision in a nuclear whistleblower case relied on the doctrine to conclude that internal disclosures are protected under the whistleblower protection provision of the Energy Reorganization Act.  Bechtel Const. Co. v. Secretary of Labor, 50 F. 3d 926 (11th Cir. 1995) (“The Secretary’s interpretation promotes the remedial purposes of the statute and avoids the unwitting consequence of preemptive retaliation, which would allow the whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency . . . This construction encourages safety concerns to be raised and resolved promptly and at the lowest possible level of bureaucracy, facilitating voluntary compliance with the ERA and avoiding the unnecessary expense and delay of formal investigations and litigation.”)

An example of preemptive retaliation is where an employer fires or otherwise retaliates against an employee based on the employer’s expectation that the employee will provide adverse testimony in a proceeding.  In Steele v. Youthful Offender Parole Board, 2008 WL 2043197 (Cal.App. 3 Dist., May 13, 2008), the court found that an employer engaged in preemptive retaliation by constructively discharging an employee who was expected to testify in support of a co-worker’s retaliation lawsuit.  The court’s reasoning provides a strong basis to apply the doctrine of preemptive retaliation to a broad range of anti-retaliation statutes:

In Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 21 Cal.Rptr.3d 861 (Lujan ), a case involving retaliation under California’s Occupational Safety and Health Act, the court held Labor Code section 6310 “applies to employers who retaliate against employees whom they believe intend to file workplace safety complaints.”  (Lujan, supra, at p. 1046, 21 Cal.Rptr.3d 861.)   The court reasoned that “firing workers who are suspected of planning to file workplace safety complaints [could] effectively discourage the filing of those complaints” and “allowing such preemptive retaliation would be at odds with section 6310’s apparent intent-to encourage such complaints and to punish employers who retaliate against employees as a result . . .   According to Lujan, “[t]o hold otherwise would create a perverse incentive for employers to retaliate against employees who they fear are about to file workplace safety complaints before the employees can do so, therefore avoiding liability under section 6310.   We do not believe the Legislature could have possibly intended such an absurd result, which could be depicted by an image of an employer following an employee and firing him or her just before the employee reached the Cal-OSHA filing window, complaint in hand.  [Citation.]”  (Lujan, supra, at pp. 1045-1046, 21 Cal.Rptr.3d 861.)

Although Lujan involved interpretation of Labor Code section 6310, we are persuaded the same analysis is applicable to FEHA. “The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints[.]”  (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455, 116 Cal.Rptr.2d 602.)   Employer retaliation against employees who are believed to be prospective complainants or witnesses for complainants undermines this legislative purpose just as effectively as retaliation after the filing of a complaint.   To limit FEHA in such a way would be to condone “an absurd result” (Lujan, supra, 124 Cal.App.4th at p. 1045, 21 Cal.Rptr.3d 861) that is contrary to legislative intent.  (See also Cal.Code Regs., tit. 2, § 7287.8, subd (a)(2)(B) [FEHA protects “[i]nvolvement as a potential witness which an employer ․ perceives as participation in an activity of the [DFEH] or [Fair Employment and Housing] Commission”].)

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.