In a recent wrongful termination case we handled, we made an argument that a bad performance review after complaining to management about discrimination is evidence of retaliation. We did not hope that this relatively insignificant action by the employer (as compared to demotion, suspension, termination, etc) would be found to be actual evidence of retaliation by the court.
However, the court surprised us by noting first that under FEHA (Fair Employment and Housing Act), whether conduct amounts to adverse employment action for the purposes of proving retaliation depends on the totality of circumstances in light of the legitimate interests of both the employer and the employee. Then, the court quoted one of the most important recent California Supreme Cases on retaliation Yanowitz v L’Oreal: “Adverse treatment that is reasonable likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of FEHA”.
Because in our case we faced exactly that situation – the claimant’s future promotion very much depended on his past performance, we were able to satisfy this adverse action requirements for the purposes of proving retaliation. The fact that the employer stated in its own handbook that their employees’ promotion in part depends on prior performance reviews was very helpful to our efforts to prove the retaliation claim.