about the employer to the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission? If so, such statements would almost certainly qualify as a statement before an official proceeding authorized by law. Similarly, if the cross complaint alleges that the employee made defamato- ry statements to potential witnesses in the underlying lawsuit, that too, could be pro- tected, so long as the statements were made in connection with the employee’s pending or anticipated litigation against the employer. (See, e.g., Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1270 [73 Cal.Rptr.3d 383, 394].) Once the employee is able to estab-
lish that the challenged causes of action fall within the scope of section 425.16, the burden shifts to the cross-complainant to present admissible evidence establishing a probability that it will prevail on its claims. (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675 [64 Cal.Rptr.2d 222, 226].) This aspect of the special motion to strike will require a detailed discussion of the legal and factual merits of the caus- es of action contained in the cross-com- plaint. Whether or not the special motion to strike is ultimately granted, forcing the employer to memorialize in declarations or through other evidence the merits of its claims can be very valuable as the case proceeds, since witnesses will be hard- pressed to change their version of the facts already contained in declarations under oath and will provide the plaintiff with valuable information normally only gleaned through the time-consuming and often gamesmanship-driven discovery process.
Another upshot of the special motion
to strike is that if it is successful, the mov- ing party is entitled to attorney’s fees and costs. (Code Civ. Proc., §425.16(c).) This fee award is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [104 Cal.Rptr.2d 377, 383].) If the special motion to strike is denied, the moving party will only be assessed attorney’s fees and costs if the court finds that the motion was frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc., § 425.16(c).)
Winning an anti-SLAPP motion and
having the employer assessed attorneys’ fees and costs early on in the litigation could take the wind out of the employer’s sails and possibly motivate settlement dis- cussions at an earlier stage than might otherwise normally occur. In addition to examining the applica-
bility of the anti-SLAPP statute, plaintiff’s counsel whose client is faced with a cross- complaint should determine whether the filing of the cross-complaint could be con- sidered a further act of retaliation in violation of the Fair Employment and Housing Act (“FEHA”). The anti-retaliation provision of the
FEHA provides that it is unlawful: For any employer, labor organization, employment agency, or person to dis- charge, expel, or otherwise discrimi- nate against any person because the per- son has opposed any practices forbid- den under this part or because the per- son has filed a complaint, testified, or assisted in any proceeding under this part.
(Gov. Code, §12940(h) (emphasis added).) The anti-retaliation provision of the
FEHA does not prohibit retaliation only against current employees. Rather, it pro- hibits retaliation against “any person.” Moreover, both the Ninth Circuit and the United States Supreme Court have held that former employees may sue a former employer for post-employment retalia- tion. These federal cases are instructive in state claims brought under the FEHA. Because the objectives of the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964 are identical, California courts frequently rely upon federal law to interpret analo- gous provisions of the state statute. (See, e.g., Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476 [4 Cal.Rptr.2d 522, 528] (“Lawsuits claiming retaliatory employment termination in violation of CFEHA are analogous to fed- eral Title VII claims, and are evaluated under federal law interpreting Title VII cases.”).)
In Robinson v. Shell Oil Co. (1997) 519 U.S. 337, 339 [117 S.Ct. 843, 845], the
United States Supreme Court held that former employees are included within the class of persons against whom retaliation for opposing discrimination is prohibited. (Ibid.) The Court reasoned that excluding former employees from the protection of the anti-retaliation provisions would undermine the effectiveness of the civil rights statutes by allowing the threat of post-employment retaliation to deter vic- tims of discrimination from filing com- plaints with the appropriate administra- tive agencies. (Id. at 346; See also, O’Brien v. Sky Chefs, Inc. (9th Cir. 1982) 670 F. 2d 864, 869, overruled on other grounds in Atonio v. Wards Cove Packing Co. (9th Cir. 1987) 810 F. 2d 1477 (allegations of for- mer employees that their former employ- er refused to rehire them and gave them bad recommendations because they filed complaints of discrimination with the EEOC were held to sufficiently assert
retaliation claims).) Moreover, many courts have found a
civil complaint against a former employee to constitute actionable retaliation. For example, in Hudson v. Moore Business Forms, Inc. (9th Cir. 1987) 836 F.2d 1156, 1162, the court found that the defen- dants’ motive in bringing a cross com- plaint against the plaintiff in a sexual dis- crimination action was to harass the plain- tiff and to deter similar actions from being brought. Similarly, in EEOC v. Outback Steakhouse of Florida, Inc. (N.D. Ohio 1999) 75 F. Supp. 2d 756, a former employee of Outback Steakhouse sued Outback for sexual harassment under Title VII of the Civil Rights Act of 1964. Outback filed a counterclaim against the former employee, Julie Inman. After that case was resolved, the EEOC filed a com- plaint alleging that Outback’s filing of a counterclaim against Ms. Inman constitut- ed unlawful retaliation. Outback contend- ed that there could be no retaliation claim because Ms. Inman was a former employee at the time the counterclaim was filed, the counterclaim had no effect on Ms. Inman’s employment or prospec- tive employment, and thus there was no adverse employment action. The court disagreed. Citing the Supreme Court’s decision in Robinson v. Shell Oil Co. and
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