There is a fair amount of confusion between the commonly used definition of discrimination and how the law actually defines discrimination. The legal classification of discrimination defines it as the unequal or hostile treatment of an individual or group of individuals based on certain characteristics.
A Brief History About Workplace Discrimination
Workplace discrimination in the United States came to light in the mid-20th century with the Civil Rights Act of 1964. During the Civil Rights Movement, commonly persecuted groups, such as women and African Americans began protesting their lack of rights within the workplace.
Without legal protections, targeted groups were often stuck in dead-end positions with poor working conditions. Individuals often were subject to humiliating and hurtful abuse based on their skin color, gender, marital status, and other perceived deficiencies.
In the decades following, California has remained at the forefront of protecting groups under workplace discrimination and employment laws.
While legal protections were stepped up dramatically over the years following the chaotic era of the Civil Rights Movement, aspects of discriminatory behavior persist in both purposeful, malevolent and unintentional, ignorant forms.
In 2018, the U.S. Equal Employment Opportunity Commission (EEOC) resolved a full 90,558 charges of discrimination and secured $505 million for victims of unfair treatment. In 2017, the California Department of Fair Employment and Housing (DFEH) settled 888 cases and netted nearly $13 million in settlements for victims. Here our some of our own firm's achievements in employment law cases.
The Purpose of this Guide
This guide is meant to assist both employees and employers with understanding the basics of anti-discrimination laws in both the United States and in California. This guide also provides advice for groups and individuals to both recognize discrimination and seek the necessary legal action when facing discrimination in the workplace.
Table of Contents
Chapter 1: What is Workplace Discrimination?
Chapter 2: Types of Workplace Discrimination
Chapter 3: Identifying Workplace Discrimination
Chapter 4: Discrimination Laws in California
Chapter 5: How to Prevent Workplace Discrimination
Chapter 6: Responding to Discrimination
Chapter 7: Hiring a California Workplace Discrimination Lawyer
Chapter One: What is Workplace Discrimination?
The Legal Definition of Workplace Discrimination
Workplace Discrimination is the unfair or biased treatment of a protected classification or group based on their specific characteristics. Further classifications are expanded upon in Chapter two.
When Does Employer Discrimination Start?
Workplace discrimination can take place anywhere from the application process and initial stages of hiring to the eventual termination and anywhere in between. We'll expand on these various stages in Chapter three.
Preventing Discrimination in the Workplace
As an employer, focus on preventative measures. Make sure all employees and leadership understand discriminatory behavior will not be tolerated. If complaints arise, make sure you have the policy and infrastructure in place to quickly handle the situation and prevent it from escalating.
As an employee, make sure you are well versed in what constitutes workplace discrimination, harassment, and bullying. Read the Employee Handbook and research your federal and state employment laws. Know what your rights are and how you may be protected by the law.
If you experience what you believe to be discriminatory behavior, make sure to follow proper guidelines and seek legal guidance if needed.
For further preventative and responsive efforts, refer to chapter five and six.
Common Misconceptions About Workplace Discrimination
Is being mean grounds for a discrimination suit?
We've all dealt with grouchy, unhappy, and generally unpleasant colleagues, employers, and subordinates. They may have, in fact, discriminated against you for one thing or another: being a smoker, liking cats, or being talkative or quiet. However, unless you were treated harshly or unfairly due to a characteristic covered under the law, it may not apply under anti-discrimination laws.
I was fired! Do I have a case against my employer?
Termination from a position is not fun for anyone. You may feel like your employer was unfair and treated you poorly, but unless you can prove that the termination was specifically done as a retributive act or once again due to a characteristic by federal or state laws, a legal case against your employer will not go far.
Reverse Discrimination Doesn't Exist!
While you may feel differently, every citizen in the United States is protected under the law. Certain groups may not be viewed as the typical targets of discrimination yet are still protected by anti-discrimination laws. If any group or individual are treated unfairly or differently based on their legally protected classifications, they also have grounds for action against their employers.
I was just joking around! That's not bullying!
While you may not think so, the law says differently. If you are making insensitive comments on a consistent basis, even in jest, the targets of those comments may file complaints against you. Your employers can take action against you in order to ensure the comfort of other employees and protect themselves against potential lawsuits in the future. If you are the employer, your employees may resort to legal action on the grounds of harassment, bullying, and discrimination.
Chapter Two: Types of Workplace Discrimination
We have already discussed legal classifications and how they apply to the law in the previous chapters, but what exactly are these classes?
The most common types of discrimination include:
- Sexual orientation
Less Commonly Known Protections
However, there are many more protected classes covered under both state and federal laws, including:
- Gender expression/gender reassignment
- Country of Origin
- Immigration Status
- Medical Condition
- Veteran Status
- Failure to Accommodate
Additional Protections in California
In California, we have further added the following classes for protection under state law:
- Mental health disability
- Genetic information
- Marital Status
- Political activities/affiliations
- Status as a victim of domestic violence, assault, or stalking
Individual cities may also have their own protected classes. In San Francisco, for example, weight and height are both protected classes. Research your city's policies on protected classes, and if need be, seek out lawyers for harassment and discrimination if you believe you have been mistreated based on one of these classifications.
Chapter Three: Identifying Workplace Discrimination
Two Types of Discrimination Cases
There are two primary types of discrimination cases: Disparate Treatment and Disparate Impact.
You can primarily differentiate the two by determining if they are intentional and meant to harass, bully, or otherwise mistreat you, or simply an unintentional policy that disproportionately affects members of a certain classification. In the former case, it is classified as Disparate Treatment, in the latter, Disparate Impact.
Disparate Treatment discrimination is what most people consider when they think of workplace discrimination. It is a targeted and specifically purposeful treatment of an individual or group of individuals based on characteristics falling under the legally protected classes.
Some Examples of Disparate Treatment
- Denial of promotions or raises
- Harassment based on protected characteristics
A scenario may include relegating workers of a protected class to the less favorable positions in the firm.
Disparate Impact discrimination is typically a ‘neutral' policy that primarily impacts employees in a protected class, either positively or negatively.
An Example of Disparate Impact
A company may implement a test to determine suitability for promotion. However, this test may inherently disqualify foreign-born, or disabled employees due to cultural or physical barriers.
Unless the test is absolutely necessary for the work being performed, this policy falls into the legal territory of workplace discrimination.
Expanding on the Lesser-Known Workplace Discrimination
Failure to Accommodate
This common discrimination law is often ignored by companies which fail to provide reasonable accommodations for employees with disabilities, religious preferences, or those who need lactation breaks.
What to Know About Failure to Accommodate?
- The employer must provide accommodations which will effectively allow the employee to perform their job tasks without imposing an undue hardship on the company.
- Employers may not need to provide specific accommodations requested by the employee, but an interactive engagement with the employee to discuss their capability to perform job tasks is mandated by law.
- From the beginning, companies must provide reasonable accommodations to help disabled applicants complete the initial application.
- Companies are not required to lower performance or productivity standards as long as they have made these reasonable accommodations. However, if you were injured at work, other protections may apply in that scenario.
Companies are limited in many ways in order to ensure discrimination does not affect the hiring process.
Under EEOC regulations, companies may NOT do the following:
- Advertise jobs based on protected classifications.
- Refuse to give applications to people under protected classes.
- Refuse to hire based on stereotypes.
- Judge job referrals on the basis of protected classes.
- Inquire about the nature or severity of disabilities during the hiring process. Once the disabled person is hired, the employer can then inquire about these items.
If a company did not take steps to prevent or stop colleagues or other employees from engaging in discriminatory behavior, harassment, or bullying, the company may become liable for the actions of its employees.
A major issue at many companies is retaliation. If an employee is filing complaints, reporting to federal or state agencies or even filing a discrimination lawsuit, and is subsequently terminated, that could be a case of retaliation. Retaliation is unlawful and a company should never terminate an employee, just for reporting discrimination in the workplace. Proving retaliation can be difficult, which is why it's helpful to hire a wrongful termination attorney. Here are some other red flags of retaliation.
Some companies may fail to provide the legal minimum of maternity leave. In fact, employers are required under federal law to provide up to 12 weeks of maternity leave. In California, expecting mothers who are experiencing disabilities due to pregnancy are allowed 4 months of disability leave, as well as a reasonable amount of accommodation leave if they experience pregnancy or birth-related disabilities after the baby is delivered.
If a company punishes new and expectant mothers with demotions, denials of pay raises and promotions, or otherwise treats the employee differently, they may be liable for discrimination.
Real Life Examples of Workplace Discrimination
1. In 2018, an Ex-Ford Motor Company employee successfully sued the automobile manufacturer for $17 million on the basis of discrimination for his racial background. The engineer accused his supervisors of unfair treatment due to his Middle Eastern background and accent. The employee contested, that supervisors consistently berated and criticized him for not speaking ‘proper' English and explained how he was put into demeaning and servile positions despite his Ph.D. in industrial engineering.
2. In the Supreme Court case Griggs v. Duke Power Co. (1971), the plaintiff accused the company of requiring unnecessary education requirements and I.Q. tests to specifically exclude African American applicants. The Supreme Court sided with the plaintiff, and the tests were subsequently banned.
3. In a later Supreme Court case, Price Waterhouse v. Hopkins (1989), the Supreme Court heard a case where the plaintiff was discriminated against on the basis of sex-based stereotypes. The Court determined that employment discrimination based on sex stereotypes was unlawful discrimination under Title VII of the Civil Rights Act of 1964.
Chapter 4: Discrimination Laws: Federal vs. California
While federal laws were initially put into place by the Civil Rights Act of 1964 and were slowly expanded over time, individual states were also allowed to expand laws upon the limited protections given by the federal government.
California quickly took the lead in expanding Workplace Discrimination protections with the Fair Employment and Housing Act.
Purpose of Anti-Discrimination Laws
Anti-discrimination laws were created to protect the civil rights of all citizens of the United States. In the country's turbulent history, widespread discriminatory practices violated the rights of many groups of people and led to a great deal of violence and suffering.
After the Civil Rights Movement influenced the passing of the Civil Rights Act of 1964, these laws have come to protect citizens' rights in all manners of life, from military service to the workplace. Initially only covering race, color, religion, sex, and national origin, federal laws have expanded over the years to cover a number of other protected classifications
5 Federal Anti-Workplace Discrimination Laws
1. Civil Rights Act of 1964
Prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin.
2. Equal Pay Act
Requires employers to give men and women equal pay for equal work.
3. Age Discrimination in Employment Act
Disallows companies from discriminating based on the age of an employee or applicant.
4. Americans with Disabilities Act
Bars companies from discriminating against people with disabilities during any part of the employment process.
5. Genetic Information Nondiscrimination Act
Bans the use of an applicant or employee's genetic information as an impetus for employment decisions.
California State-Specific Workplace Discrimination Laws
The primary state-specific law in regard to workplace discrimination in California is the Fair Employment and Housing Act of 1980, which combined the Fair Employment Act of 1959 and the Rumford Fair Housing Act of 1963 to establish an organization to guarantee employment and housing rights for Californian citizens.
Since its inception, it has expanded the protected classes to include the following:
- Mental or Medical Disabilities
- Political Affiliation
- Sexual Orientation
- Military or Veteran Status
- Status as a Victim of Domestic Violence, Assault, or Stalking
- Gender Identity and Expression,
- Undergoing Gender Reassignment.
Comparing Federal and California Workplace Discrimination Laws
For Federal anti-discrimination laws, companies typically need to employ 15 or more employees to be subject to the law.
In the case of age-related discrimination practices, firms need to employ 20 or more individuals to qualify as being under the purview of anti-discrimination laws.
In California, however, anti-discrimination laws of all types are applied to any firm that has 5 or more employees. There is no distinction between age-related and other types of discrimination under the Employment and Housing Act.
Exemptions Under Workplace Discrimination Laws
In order to be exempt from anti-discrimination laws on both the federal and state level, an organization must meet very stringent and specific qualifications.
As such, there are very limited cases in which a firm or organization can be exempt from anti-discrimination laws.
Common exemptions include the following:
Religiously Affiliated Organizations
Religiously affiliated organizations, such as churches, hospitals, and schools, are exempt from federal and state level discrimination on the basis of religion. In other words, religiously affiliated organizations can discriminate their hiring practices on the basis of religion.
For example, a Catholic-based organization is allowed to only hire adherents to the Catholic faith.
Bona Fide Occupational Qualifications
In cases where some level of discrimination is absolutely essential for the performance of the primary duties of a position, organizations may do so.
For example, firefighters are required to perform certain physical acts in order to carry out their duties, which may require the screening of certain applicants who are less physically able. Firms and organizations need to prove that these qualifications are essential to the job in order to be exempt.
Communist Party Affiliation
Despite political affiliation protections under state law, in almost every setting, Communist Party members are exempted from anti-discrimination laws.
Chapter 5: How to Prevent Workplace Discrimination
For both employees and employers, the best method of combating workplace discrimination is preventing it from happening in the first place.
Prevention for Employers
Make Expectations Clear
For employers, prevention starts with a well written, clear, and thorough Employee Handbook that details the firm's guidelines on what does and doesn't constitute discriminatory behavior, harassment, and bullying. Let employees know that corrective action will be immediately taken if it is reported that they are engaging in such behaviors.
Provide Consistent Training
Training in awareness and behavior-avoidance is an effective prevention method. While hateful conduct still very much exists, most discriminatory behavior comes from a general lack of awareness on the part of the organization and its employees. Establish a training schedule for employees within every level of the organization to give them the tools they need to self-correct any behavior that might get them, and by extension of the company, in legal trouble.
Give Employees Outlets to Report
Make sure your employees are aware of the options they have to report offensive, discriminatory, or other behaviors associated with Anti-discrimination laws. If your employees know they have inter-organizational pathways for making their complaints known, they will be less likely to resort to legal action in the future.
Uphold Quality Policies
Adoption of policies that are proven methods of lessening personal bias and discrimination is also a worthwhile pursuit. Make hiring, promotions, and payment adjustments as objective as possible by using a ‘blind' appraisement of candidates, where their names and personal information is hidden from the reviewer. This practice can help eliminate any kind of hidden bias or prejudices from causing undue harm to the organization.
Prevention for Employees
Understand Company Policies
The best method of prevention for employees is to be aware of their rights under the law and within the organization. As the employer's first action toward workplace discrimination prevention is providing a solid Employee Handbook, the employee's first preventative action should be to carefully review the Handbook in order to familiarize themselves with their employer's policies.
Be aware of how discrimination, harassment, and bullying are defined by the company and what steps they offer to ameliorate the situation.
Every organization falling under the purview of the Equal Employment Opportunity Commission (EEOC) or Fair Employment and Housing Act (FEHA) is required to hang a poster that details anti-discrimination laws and the steps employees can take to report discrimination to the proper agency. An employee interested in preventing workplace discrimination in California should make themselves familiar with the location of the poster and the information it contains.
Finally, the EEOC and FEHA both contain sizeable documentation that specifies what does and does not qualify as workplace discrimination. For any employee interested in discriminatory policy and behavioral prevention, these materials will assist in helping understand their rights, identify problematic behavior, and provide pathways towards reporting and arbitration.
Chapter 6: Responding to Discrimination
If during your research, you determine workplace treatment falls within the purview of workplace discrimination, your next steps must be made very carefully. You must follow the guidelines set by your organization for reporting and handling such situations before reporting it to federal and state authorities and beginning the litigation process. If not, it's possible the case may not make it for judicial review.
What to do if you experience discrimination in the hiring process?
Firms and organizations are barred from basing their hiring decisions on characteristics associated with protected classes. If you believe you were not hired or considered for a position based on your class, you may have grounds for a complaint and eventual lawsuit against the organization that did not hire you.
Hiring lawsuits are very difficult to file and prosecute. Most of the time there is little evidence to show why you were passed over. Unless you have hard evidence, like testimony from a contact within the offending entity, hiring lawsuits are a tough sell to many judges. In most cases, you should consult an employment law attorney who specializes in harassment and discrimination to see if there's any chance of winning your case.
What to do if you experience discrimination while working for the employer?
Notify Your Employer
This is where familiarizing yourself with the company's policies comes into play. If the organization provides you with an avenue to submit complaints, use them. In many situations where workplace discrimination occurs from a colleague, superior or subordinate, the company will work with you to ensure that the behavior is corrected.
This step is important because the EEOC has determined in the past that companies who are unaware of the behavior are not legally liable. If you plan on taking legal steps against the firm, it must be aware that the discriminatory behavior in the first place. However, if harassment regularly took place over a number of years, it's still not too late.
Ways You Can Often Notify Your Company of Discrimination
- HR department
- File an anonymous complaint/work hotline
- Fill out the necessary forms to alert your company
- Inform superiors whom you trust to help rectify the situation
Start Documenting and Collecting Information
While taking the above steps, make sure you are collecting as much evidence as possible in case it comes to an investigation.
Email correspondence, the written testimony of colleagues that support you, and other information that provides credence to your claims will help any future action you may take against the company, or simply help the inter-organizational authorities who deal with the offending behavior.
Report Behavior to State or Federal Organizations
If you have experienced discriminatory behavior and want to act, be aware of the statutes of limitation on how far in the future you may report it.
- For the EEOC, you must contact an EEO counselor to report the discrimination within 45 days.
- For the FEHA, you must submit an intake form within one calendar year.
If the organizations have failed to issue a decision, you have 180 days to file a lawsuit after the EEOC has failed to issue and a full calendar year for the DFEH.
Reporting a Notice of Lawsuit
If you have taken the appropriate action to notify the firm about the offensive and unlawful behavior and they have not taken any steps to correct it, you should then move to filing either a complaint with the EEOC and DFEH (Department of Fair Employment and Housing) or obtain a Right-To-Sue notice if you plan on filing your own lawsuit.
- For the EEOC, you must interview with an EEO Counselor in order to determine if there's a case and how you should proceed with the suit. Once the final interview has taken place, you may file a formal complaint and proceed with the suit.
- For the DFEH, you fill out an intake form that matches the type of discrimination that you've experienced, then submit it either via email or post office.
What to do if you were terminated from the position?
Retaliatory termination is one of the most commonly alleged bases of discrimination reported to the EEOC. Retaliatory actions taken against you after filing complaints either within the organization or with the EEOC or DFEH are prohibited by the law, so if you believe you were wrongfully terminated for speaking out against discriminatory practices in the organization, report it immediately to the authorities.
Alternatively, you may also immediately contact a wrongful termination attorney to discuss if there's enough proof to take your lawsuit to court.
Chapter 7: Hiring a California Workplace Discrimination Lawyer
In almost every case where an individual experiences workplace discrimination, their standing would be substantially improved if they consulted a lawyer who specialized in employment law.
The legal process is difficult to understand in the best of times, and if you don't follow expert legal advice, you may miss the opportunity to not only solve the problem in a satisfactory way, but also receive damages for the discriminatory treatment.
Step One: Consult a Lawyer Who Specializes in Workplace Discrimination
If you believe you were discriminated against in the workplace, take steps to receive a consultation. If nothing else, the lawyer will help you determine if the situation is indeed unlawful, and what steps you can take to either fix the problem by yourself or handle it through legal means.
There are a number of lawyers that specialize in workplace discrimination.
Look for firms who specialize in Religious, Racial, Sex-based, or other protected class discrimination law.
Step Two: Gather Evidence and Present Your Case
If you mean to file suit, you will need to present your case a harassment and discrimination lawyer so they can determine if your suit will be successful in court. Bring all documentation and evidence of your claims, so you can clearly describe your situation.
If they agree to take on your case, let the lawyer take the lead.
Step Three: File an Administrative Charge
File your complaint with the EEOC and FDEH. Typically, they will issue you a right to sue after an investigation. Once you have received the right to sue letter, you may file your lawsuit
Step Four: Follow Your Lawyer's Advice
Your role now is to be a helpful witness as your workplace discrimination attorney gathers evidence and argues the case in court. Follow whatever steps they recommend and get ready to fight for your rights as an employee and citizen.
Need Help With Your Case?
Talk to the experienced employment and discrimination lawyers at Kingsley & Kingsley. We can help defend your rights within the complex federal and state employment laws and regulations. Contact us for a free consultation at 888-500-8469.