The changing landscape of FEHA retaliation claims: When does workplace conflict become unlawful retaliation?

As remote work expands, California employers and employees face a growing question under the Fair Employment and Housing Act (FEHA): when does ordinary workplace conflict become unlawful retaliation? Although FEHA has evolved since its consolidation in 1980, applying its retaliation protections to virtual workplaces presents increasingly complex challenges.

To determine when workplace conflict becomes unlawful retaliation under FEHA, begin with the governing elements. A claimant generally must show that the employee engaged in protected activity, the employer subjected the employee to an adverse employment action, and a causal connection existed between the two.

What are protected activities?

Under FEHA, legally protected activities often relate to an underlying protected class. A protected class is a specific group of people legally safeguarded from unfair treatment based on shared, absolute or fundamental personal characteristics. California's FEHA offers greater protection than federal law by specifically including subcategories of the better-known classes. For example, not only does FEHA identify the category of sex and gender, but it also includes protection for gender identity, gender expression and sexual orientation. Protected activities include requesting disability, pregnancy or religious accommodation, and opposing any practices forbidden by FEHA or engaging in any activity such as filing a complaint, testifying or assisting in any administrative proceedings, investigations or lawsuits under FEHA.

What is considered an adverse employment action?

Adverse employment action is conduct reasonably likely to impair a reasonable employee's job performance or advancement prospects. While termination is the most obvious example, it can also include conduct such as providing a negative reference to a prospective employer or allowing a hostile work environment that affects job performance.

The California Supreme Court has held that an employer's mere inaction after a harassment complaint is not itself retaliatory.(Bailey v. San Francisco Dist. Attorney's Office (2024) 16 Cal.5th 611, 640). Still, such complaints shouldn't be overlooked; an employer's response to them can still give rise to a retaliation claim.

Why is causal connection important?

Retaliation occurs when an employer reacts in a wrongful way to an employee's legally protected action, as such the employee must show that the adverse employment action was taken in response to the employee's protected activity to establish liability. Courts take the totality of circumstances into consideration and temporal proximity is one factor often used to assess causation between protected activity and adverse actions.

How does it apply to remote workers?

Remote employees who live and work in California are generally protected by California laws, including FEHA, even when their employer is based out of state. By contrast, California courts generally do not extend FEHA protections to employees who work outside California merely because their employer is based in the state. Simply including a choice-of-law provision selecting California law does not automatically overcome this presumption against extraterritorial application of California law. (See Saberin v. Alation, Inc. (2026) 122 Cal.App.5th 165.) That said, an out-of-state employee may fall within FEHA's reach when the alleged wrongful conduct has a sufficient connection to California, such as when a California-based decision-maker performs or ratifies it. (See Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1207; N. Alaska Salmon Co. v. Pillsbury (1916) 174 Cal. 1, 4; Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850.)

How can a remote employee possibly suffer a hostile work environment when they work from home?

Harassment and retaliation can often overlap when a hostile work environment exists. An employer is strictly liable for harassment by a supervisor, human resources or decision-maker that creates a hostile work environment; however, that is not the case for harassment by co-workers.

In today's virtual workspace, harassment, including sexual harassment, is no longer limited by physical boundaries. Harassing conduct can occur via Slack, Microsoft Teams, Zoom, email or text, including repeated, intentional exclusion of remote workers from meetings or communication threads based on a protected class. Abusive or discriminatory messages sent outside work hours may also qualify if sufficiently tied to the employee's job. (See, e.g., Carranza v. City of Los Angeles (2025) 111 Cal.App.5th 388, 403 [electronic circulation of a nude photo depicting plaintiff constituted harassment]; Okonowsky v. Garland (9th Cir. 2024) 109 F.4th 1166 [wholly offsite conduct (a coworker's Instagram posts with harassing comments about female colleagues, including plaintiff) was relevant to liability because it affected plaintiff's working environment].)

The totality of the circumstances must be considered when determining employer liability. In Attala v. Rite Aid (2023) 89 Cal.App.5th 294, the court held that no harassment occurred because there was a preexisting friendship between a supervisor who sent a coworker an explicit message. The preexisting friendship made it clear that the messages were part of a separate personal relationship between the two individuals, with no connection to the workplace or their roles at work.

In Kruitbosch v. Bakersfield Recovery Services, Inc. (2025) 114 Cal.App.5th 200, the Court of Appeal clarified employer liability for co-worker harassment occurring off premises through non-work-related means. Applying the totality of circumstances test, the court found the employer became potentially liable when HR responded nonchalantly to the plaintiff's report of egregious sexual propositioning by a nonsupervisory co-worker. This conduct did not support a sexual harassment claim against the employer, but did support a hostile work environment claim.

Takeaway

California's laws continue to evolve as employers and workers adapt to today's shifting socioeconomic landscape. Staying current with these changes helps employers diligently address workplace complaints and avoid retaliation liability.