Employment discrimination undermines some of the most central and deepest values of human fairness and equity. No employee should be judged based on their physical characteristics or beliefs. What matters most is an employee’s individual contribution. Discrimination in the workplace occurs when a job applicant or employee receives less favorable treatment because of their membership or perceived membership in a certain “protected class.” Treating people negatively and differently because of a specific characteristic they have is discrimination. Every individual belongs to a protected class. Employment discrimination is prohibited under federal and state laws. As such, employers in California have a duty to take all reasonable steps to prevent the occurrence of discrimination.
Discrimination in the workplace can take many forms. Here are some common examples:
- Issuing false and unwarranted negative job reviews
- Denying benefits
- Refusing to hire, refusing to promote or increase salary, terminating, or demoting employees because of their membership in a protected group
- Removing job responsibilities
- Retaliating against an employee for complaining or reporting about discrimination
- Assigning an employee to an undesirable work schedule because of their protected characteristic
- Allowing workers to be frequently harassed in the workplace
- Refusing to accommodate disability or religious-related needs of certain employees
- Adopting company policy that disproportionately affects employees
California’s Workplace Anti-Discrimination Laws
California is one of the best states when it comes to protecting employees. The state considers it a matter of public policy to protect workers against unlawful workplace discrimination. The Anti-discrimination laws are designed and enforced for the betterment of society. They help maintain peace and harmony, help the government be more inclusive and attract top talent, and also keep employees and employers from suffering adverse effects. Both state and federal laws provide that every individual has a civil right to seek, obtain, and hold employment without discrimination.
California’s Fair Employment and Housing Act (FEHA) protects individuals from discrimination in the workplace based on their sexual orientation, gender, religion, race, veteran status, disability, and age. These protections typically apply to employers with at least five employees. The FEHA is enforced by California’s Department of Fair Employment and Housing (DFEH), which provides aggrieved employees with a process for filing complaints. Federal laws protecting workers from discrimination are enforced and administered by the U.S Equal Employment Opportunity Commission (EEOC).
The Main Types of Discrimination
As aforementioned, discrimination involves an employer treating a job applicant or employee unfavorably based on their characteristics, but the law does not prohibit all types of discrimination. There are typically two broad categories of employment discrimination claims:
Disparate impact discrimination
This form of discrimination occurs when an employer adopts a company policy that applies to all workers but has a disproportionately adverse impact on employees who belong to a certain protected class than those who don’t. In other words, the policy appears to be “facially neutral” and does not discriminate against any employee. Such a policy might be illegal it has a more negative impact on employees with a certain protected characteristic. In a disparate impact discrimination case, the employer can be responsible for any discrimination experienced even if the employer never had any discriminatory intent in the first place.
For instance, in an attempt to motivate employees to be fit and healthy, an employer adopts a policy that rewards employees with 10 extra minutes for their lunch break whenever they use the stairs instead of the elevator. However, employees who suffer from disabilities may not be able to participate and this might disparately impact them.
Disparate Treatment Discrimination
This form of discrimination occurs when an employer specifically targets employees based on their protected characteristic. The employer’s actions in disparate treatment discrimination cases must be motivated by a discriminatory intent. When an employer refuses to hire, refuses to promote, refuse to give a salary increase, harasses, demotes, terminates, or takes some adverse action against a particular employee, the action might be considered to be disparate treatment. It is the most common form of discrimination that occurs in the workplace.
In discrimination cases falling under these categories, employees bear the burden of showing that they were the victim of workplace discrimination. This involves presenting evidence to prove the “elements” of the claim, which is basically showing that several facts are true. The following are elements in cases that involve disparate treatment discrimination or disparate impact discrimination:
- The employer was covered by applicable anti-discrimination laws
- The employer took negative employment action against the employee
- The negative action was motivated by the employee or job applicant’s protected status
- The employer’s negative employment action caused the employee to suffer some kind of harm
An employee may not be able to successfully bring a lawsuit against their employer if they cannot prove one or more of these elements.
Groups of Workers Protected from Discrimination in California
The FEHA states that it is illegal for an employer to discriminate against “any person” based on their membership to a particular protected class. However, the protections offered by this part of anti-discrimination laws only apply to the employment context. As such, California’s legal protections only benefit certain groups of workers.
California anti-discrimination laws specifically extend protection to individuals applying for job positions. This means that it is unlawful for an employer to refuse to hire or select an individual for training that might result in employment because of factors such as their gender, sexual orientation, or color of the skin. A job applicant is someone who expresses a desire to be considered for employment or files a written application with an employer. In some instances, an individual can be considered an applicant and may still have rights under California law even if they never actually applied for the position because the employer’s discriminatory practices deterred them from applying for a job.
California anti-discrimination laws mostly apply to employees. An employee, in the context of this article, is someone whom the employer has agreed to hire and who works under the direct control and direction of the employer. The employer’s agreement to hire the employee can be made in writing or orally. It can also be just implied actions of the worker and the employer. A person might still be considered an employee if working as an apprentice or under an appointment, but not officially hired.
Other groups of workers protected by California’s anti-discrimination laws include:
- unpaid interns,
- temporary employees (temps), and
- certain nonprofit employees
Independent contractors, volunteers, and immediate family members are not protected from discrimination under the anti-discrimination laws of California, but they are, however, protected from harassment.
Characteristics that Receive Protection
Here is a list and short description of the different protected classes in California.
Color, Race, Ancestry, or National Origin
It is unlawful for California employers to discriminate against job applicants and employees based on the color of their skin, their race, their ancestry, or their national origin. It is also illegal to discriminate based on a person’s association with members of other skin colors, races, ancestries, or national origins. This protection extends to employees who belong to certain groups that have not been traditionally discriminated against such as Caucasians. And since an employer may not readily know an employee’s ethnicity, anti-discrimination laws also protect employees that are perceived to be of a certain color, race, ancestry, or national origin, as well as those perceived to associate with people belonging to these groups.
Age discrimination in California typically involves job applicants or employees age 40 or older. Employers may have preconceived ideas and age-based stereotypes regarding the health, job performance, qualifications, productivity, and work habit of individuals 40 years or older. California employers may not ask for an applicant’s age or refuse to hire older workers who are as qualified or even more qualified than other applicants. Also, covered employers are prohibited from firing employees when they reach a certain age.
It is against state and federal law to discriminate against a person because of his or her religious beliefs or practices. In addition, an employer must try to accommodate an employee if he or she has a genuine religious observance or belief that may interfere with their work schedule so long as the accommodation does not cause significant difficulty or expenses for the employer. The employee bears the burden of deciding what constitutes religious observation, what practices are necessary, and what a tenet of their religious belief is. However, these protections are limited and the employer is not obligated to accommodate a religious belief or practice if it would violate another civil right, or if it would separate the worker from other workers or the public.
It is unlawful for an employer to treat a job applicant or employee less favorably because he or she is believed to have a limiting medical condition or has a history of medical conditions. A qualifies person in California is one who can perform their job duties with or without reasonable accommodation. However, employees who have an increased risk of future health problems are often discriminated against in the workplace. Such employees are protected by anti-discrimination laws and are considered legally “disabled” if they have a medical condition that increases the risk of future medical problems.
A California employer may not collect genetic information from a job applicant or employee to make any employment-related decisions. A genetic condition includes a gene, chromosome, or a combination of genes that are known to be a cause of a disease or is associated with higher risk of development of a certain disease, but hasn’t manifested into disease yet. It also involves inherited characteristics that make an individual likely to develop a disease or disorder. Genetic information may not be acquired by an employer from requests for the employee or a family member to undergo testing, results of an individual’s genetic test, or knowledge that a genetic condition has manifested in the person. For example, an employer may not discriminate against an employee whose father has Lou Gehrig's disease because the employer has assumed that the employee has inherited the disease.
Employment discrimination based on a person’s sex is a violation of California law. Sex typically refers to whether a person is biologically a male or female. But when it comes to the issue of discrimination in the workplace under the FEHA, it is broader than how it is normally used and is more than just the how different employers treat a man or woman. Sex discrimination can be based on:
- Physical gender (intersexes, male, female)
- Gender expression (gender-related appearance that’s not based on a person’s sex assigned at birth)
- Gender identity
- Pregnancy or medical condition related to pregnancy
- Breastfeeding or medical condition related to it
- Childbirth or medical condition related to childbirth
Discrimination based on sexual orientation whether real or perceived is prohibited in California. This means an employer cannot discriminate against an employee who is or is perceived to be straight, gay, lesbian, heterosexual, homosexual, or bisexual. For instance, an employer cannot refuse to hire a job applicant because he “acts gay,” regardless of whether he is straight or gay.
The California Equal Pay Act and the California Fair Pay Act aims at reducing the disparity in how men and women are compensated for performing substantially similar work when viewed in terms of responsibility, effort, and skill, and also performed under similar working conditions. As such, men and women performing similar work in the same company or organization cannot be paid different salaries, except where the employer can demonstrate the pay disparity is based on:
- A seniority system
- A merit system
- A bona fide factor other than sex, such as training, experience, or education
- A system that measures earning by quality or quantity of production
A physical disability is any bodily condition, anatomical loss, disease, or cosmetic disfigurement that affects a person’s body system(s) and limits their ability to engage in a major life activity. There are three things that an employee can show that they suffer from a physical disability and these include:
Physical impairment: The employee has a cosmetic disfigurement, anatomical loss, disorder, condition, or physiological disease.
Major bodily system: The physical impairment affects one or more of the following body systems: musculoskeletal, neurological, reproductive, cardiovascular, digestive, immunological, respiratory, hemic and lymphatic, special sense organs, skin, endocrine, and speech organs.
Limited life activity: The impairment affects functions that are important to a person’s daily life such as performing manual tasks, walking, talking, caring for one’s self or major bodily functions such as bowel movement, circulatory functions, normal cell growth, immune system functions, etc.
California employers should not regard a job applicant or employee’s actual or perceived disability when evaluating them. Also, an employer is prohibited from asking about an applicant’s disability or requesting them to take a medical or psychological exam. Employers are also required to provide reasonable accommodation for employees and applicants with a disability that hinders them from performing the essential functions of the job. Reasonable accommodation may include modifying work schedules and work policies, part-time scheduling, restructuring the job, modifying equipment, reassignment to a vacant position, providing interpreters or reader or adjustments to training materials. Reasonable accommodation must be provided unless it would cause undue hardships, which is basically significant difficulty or hardship.
According to the FEHA, mental disability is any psychological or mental condition that limits a major life activity. These limitations are determined without regards to reasonable accommodation, assistive devices, or mediation. Employees and job applicants cannot be discriminated against based on their mental disability. In addition, discrimination by an employer due to a perceived mental disability is unlawful, whether or not the perception is correct.
Common examples of mental disabilities include:
- Bipolar disease
- Mental illnesses
- Autism spectrum disorder
- Clinical depression
- Specific learning disabilities
- Intellectual or cognitive disability
- Obsessive-compulsive disorder
However, California law excludes certain behavioral problems, including:
- Compulsive gambling
- Sexual behavior disorders such as voyeurism, pedophilia, exhibitionism
- Impairment from unlawful use of drugs or alcohol
The Americans with Disabilities Act of 1990 (ADA) also protects individuals from employment in the workplace based on disability.
Employers that Can Be Held Liable for Discrimination in California
California’s anti-discrimination laws apply to the following categories of employers:
- State or government entities,
- Employers with five or more employees, and
- Agents of covered employers.
People or businesses that employ five or more persons
While California anti-discrimination laws seek to discourage employers from engaging discrimination against employees or job applicants, it does not apply to very small employees. As such, employees of businesses that regularly employ not more than five people are not protected by California workplace discrimination laws. However, these conditions are different when it comes to federal law since a person is considered an employer if they have 15 or more employees. Here are the definitions of phrases involved:
- Employer- An employer is an individual, corporation, association, business, and any other legal entity that has employees.
- Five or more- This refers to a situation where five or more people are directed and controlled by an employer under any employment appointment, apprenticeship, or contract. The contract can be oral or written, expressed or implied.
- “Regularly employs”- An employer is considered to regular employ five or more people when there was a period of twenty consecutive weeks during the most recent two calendars years where they employed five or more people during each week.
Part-time employees, as well as those on paid or unpaid leave, are also considered as employed individuals.
Agents of Covered Employees
Under California law, an agent is a person who represents an entity or another person when it comes to dealing with third parties. Agents in California are also considered employers. For this reason, an agent of a covered employer can be held liable for their discrimination practices. Also, employers can be responsible for the acts of their agents, including discriminatory behavior. California courts typically look at the amount of control an employer exercises over a person in determining whether someone is an agent.
State and Local Governments
Under California’s anti-discrimination laws, the state of California is also considered an employer. As such, people employed by the state government can sue for the employment discrimination they suffer. In addition, any subdivision of the State of California, local agencies, city governments, county governments, and special districts are also employers.
Remedies Available in Employment Discrimination Cases
- Economic Damages: If you win your case, the court may order your employer to pay you wages you would have earned had you not been fired as a result of work discrimination.
- Emotional Distress Damages: These are damages for the pain and suffering caused by the discrimination. Emotional distress damages can include for any mental suffering, depression, and stress. California discrimination laws try to compensate for both past and future emotional damages resulting from discrimination in the workplace.
- Attorney’s fees: Employees who’ve suffered employment discrimination may be awarded attorney’s fees as stipulated by California’s anti-discrimination laws. This was the state’s way to incentivize attorneys to take on these cases even though many of them have low emotional distress and economic damages.
- Punitive Damages: The court may also award punitive damages as a way of punishing the employer for employment discrimination and deterring other employers from such conduct. Punitive damages, however, are limited in size and extremely rare. For a plaintiff to receive these damages, they must show that the employer acted with fraud, malice, or oppression in their discrimination. This standard is often hard to surpass.
Finding Employment Discrimination Legal Representation Near Me
If you believe you may have been a victim of employment discrimination in California, don’t just put up with it and go with the flow. The attorneys at Stop Unpaid Wages can help you understand your legal rights, determine if you have a case, and guide you through your case step-by-step. Send us an email or call us at 424-781-8411 to schedule a free, confidential consultation regarding your workplace discrimination concerns. We’re here to answer any questions you have and to help you in your situation.