EMPLOYMENT DISCRIMINATION

Lawyers Fighting Discrimination in the California Workplace

Workplace Discrimination FAQs

Federal and state laws strictly prohibit workplace discrimination. The Equal Employment Opportunity Committee (EEOC) is responsible for enforcing anti-discrimination laws in the employment sector.

The EEOC may investigate allegations of discrimination in various work-related situations, including training, wages, benefits, hiring, dismissing, and promotions.

While the total number of employment discrimination charges in California has decreased over the last several years, there were still over 4,000 reported cases of employment discrimination statewide in 2018, accounting for nearly 6% of all charges related to employment discrimination in America.

Our team of employment attorneys at Perkins Asbill is experienced, knowledgeable and passionate about this area of law. We have represented a broad spectrum of clients with a variety of employment discrimination experiences. We are committed to fighting for the best interests of our clients.

What is Employment Discrimination?

In the State of California, employment discrimination laws are enforced by the California Department of Fair Employment and Housing. Employers who have more than five employees on payroll are prohibited from discriminating against job applicants and/or current employees due to the employee’s or potential employee’s membership in a protected class.

These laws protect employees from illegal discrimination based on:

• Race or ethnicity
• Ancestry or national origin
• Religion
• Age
• Mental or physical disability
• Sex
• Sexual orientation
• Gender identity or gender expression
• Medical conditions
• Genetic information
• Marital status
• Military and veteran status

What is a protected class?

A “protected class” refers to specific groups of people who are protected from discrimination and harassment by law. Protected classes share a set of unique traits and are vulnerable to unfair treatment. Various federal laws have been passed to ensure everyone is treated equally, fairly, and respectfully:

• Title VII of the Civil Rights Act of 1964 (Title VII)
• The Pregnancy Discrimination Act
• The Equal Pay Act of 1963 (EPA)
• The Age Discrimination in Employment Act of 1967 (ADEA)
• Sections 102 and 103 of the Civil Rights Act of 1991
• Sections 501 and 505 of the Rehabilitation Act of 1973
• The Genetic Information Nondiscrimination Act of 2008 (GINA)

As the above laws have evolved, the following classes are now protected by discrimination and harassment:

• Race
• National origin
• Age
• Sex
• Pregnancy
• Citizenship
• Religious belief, dress, and grooming practices
• Family status
• Disability status
• Veteran status
• Genetic information
• Request for family care leave (FMLA)
• Request leave for pregnancy

In addition, each state has a set of anti-discrimination and harassment laws. California state laws protect the groups above and the following:

• Gender identity and gender expression
• Sexual orientation
• Request leave for an employee’s own health condition
• Marital status
• Medical condition
• Ancestry

Despite the above laws, workplace discrimination is still pervasive in the US. In the last reporting year, the EEOC saw nearly 68,000 charges of workplace discrimination, broken down below:

• 55.8% retaliation
• 36.1% disability
• 32.7% race
• 31.7% sex
• 21% age
• 9.5% national origin
• 5.3% color
• 3.6% religion
• 1.5% Equal Pay Act
• .7% genetic information

The above percentages add up to more than 100% due to multiple charges in some cases.

What are the four types of discrimination?

Discrimination in the workplace can take many forms. Generally, discriminatory behavior is characterized by one of the following types:

• Disparate treatment, or direct discrimination: Direct discrimination is the most apparent form of discriminatory conduct. It may involve excluding an employee because of their association to a protected class, passing them for a promotion when they meet the qualifications or using slurs.
• Disparate impact, or indirect discrimination: Indirect discrimination is not a single or isolated incident like above. Instead, indirect discrimination describes a company policy or rule that adversely affects one protected class of people. The discriminatory policy may not intentionally be unfair. However, that does not excuse the need to change the policy.

An example of disparate impact may be when an employer creates a no facial hair policy to maintain a specific look for employees. However, a cleanly shaven policy may discriminate against someone for medical reasons. For some races with the skin condition, pseudofolliculitis barbae (PFB), when the skin is irritated by a close shave, it can break out in acne-like bumps that can leave deep scars. Medically, the condition is less likely to flare up if the shave is not very close.

• Harassment: Harassment is pervasive, ongoing, and unwanted conduct. Workplace harassment can take many forms, including verbal abuse, physical abuse, psychological harassment, digital harassment, or sexual harassment.

Harassment may involve racist or discriminatory jokes, posting offensive materials, unwelcome sexual advances, bullying, slurs, or intimidating and aggressive behavior.

• Retaliation: Retaliation is the discriminatory actions against someone who has filed a complaint, charge, or participates in an Equal Employment Opportunity Commission (EEOC) investigation.

How do I know if I have been discriminated against at work?

Workplace discrimination is not always blatant. In many cases, victims doubt if what they experienced is based on their work performance or because of specific characteristics protected by law. Conversely, a difficult working environment does not necessarily mean you have experienced discrimination. 

For workplace discrimination to occur, you must belong to a protected class under federal or state law. The negative treatment or circumstances you have experienced must be linked to your membership of a protected class. Federally protected classes include race, sex, age, disability, and more.

Unfortunately, obtaining evidence that your race or disability caused you to be treated unfairly can be challenging to unearth. Evidence may be direct or indirect.

Direct evidence may be emails or statements by your supervisor specifically saying you were treated differently because of your age, race, sex. Indirect evidence is more common and usually consists of circumstantial proof.

When determining if you have experienced workplace discrimination, consider the following questions:

• Is your race, gender, sexual orientation, or other protected characteristic underrepresented at your workplace?
• Are there any valid reasons your supervisor or employer would take action against you?
• Was the adverse treatment you experienced in line with company policies?
• If so, do you feel the company policies are fair or indirectly discriminating?
• Were there any employees not a member of your protected class treated in the same manner in a similar situation?
• If you were not a member of a protected class, do you feel you would have been treated better?

The most common forms of workplace discrimination include the following:

• When employment testing and training adversely affects a protected class
• If there are consistencies in wages, salaries, and benefits
• Being excluded from meetings, work assignments, or outside-of-work activities that would lead to greater opportunities for advancement
• Given harsher disciplinary action than other employees in similar circumstances
• Being passed over for a promotion when you are as qualified, or more than the candidate chosen

When do jokes and workplace humor turn into a hostile work environment?

Workplace jokes and humor can develop into a hostile work environment. However, it can be difficult to determine if the atmosphere qualifies as hostile, if a protected class member is experiencing discrimination, or if an employee does not get along with their co-workers.

In addition, some jokes may be bad or distasteful, but that does not necessarily make the workplace hostile under the law. To understand where jokes and teasing evolve into a toxic workplace, it is critical to understand the components of a hostile work environment.

Under the California Legislative Information, the criterion for a hostile workplace includes:

• Severe or pervasive inappropriate or unwelcome behavior
• Abusive workplace atmosphere, including bullying, shaming, and yelling
• Discriminatory behavior toward a protected class
• Aggressive, threatening, intimidating behavior from superiors
• Conduct that meets workplace harassment conditions, including sexual harassment and discrimination
• Workplace performance is affected, and employees find it challenging to fulfill the duties of their job

When a hostile work environment develops over the years, long-time employees may find it difficult to discern if they are in an unpleasant or hostile work environment. If you are unsure if your workplace meets the legal criteria, the following are common indicators of a toxic atmosphere:

• Employee turnover rate is high
• Colleagues frequently call out of work
• Co-workers commonly argue or complain about feeling underappreciated
• There are numerous HR complaints
• Employees are regularly exhausted, overly stressed, and show signs of burnout

Humor can be a large part of workplace culture. Good humor can make a company’s culture more productive and efficient when employees feel happy at work. However, in cases where humor devolves into hostility, the entire workplace culture can become symptomatic of a hostile workplace.

For example, if the jokes and teasing shame, belittle, humiliate, or discredit employees of protected classes frequently and persistently, it may be a hostile work environment.

What must I prove in a workplace discrimination lawsuit?

Proving workplace discrimination can be challenging. Critical evidence can be difficult to obtain. Employers have committed blatant forms of discrimination, like refusing to hire transgender candidates. However, employers are unlikely to send out a memo detailing their prejudice.

Even if your manager makes the direct statement, “I am not giving you the promotion because you are too old,” it is their word against yours. Unless there is a conversation recording or a witness statement, more evidence will be needed to prove workplace discrimination.

Generally, workplace discrimination involves circumstantial evidence, direct proof, or evidence of a pattern and practice of discriminatory behavior:

• Circumstantial evidence: Circumstantial evidence is the most commonly used proof in lawsuits. In this type of evidence, the discrimination will not be direct but reasonably inferred by the set of circumstances.

For example, if you check your mailbox and see the bills and letters, you can reasonably infer the mail carrier placed them there. You did not see the mail carrier put the bills and letters in your box. However, the circumstances support that the courier delivered the mail.

Regarding workplace discrimination, suppose a non-binary candidate applies for a job and is well qualified regarding workplace discrimination. A less suitable candidate who is not a protected class member is given the job. The passed-over candidate may have a case with circumstantial evidence. 

• Direct evidence: Direct evidence may be text messages, emails, memos, recorded statements, videos, and other physical proof of discrimination.
• Evidence of pattern and practice: Evidence of pattern and practice involves exposing the company engaged in discriminatory behavior against multiple people. If the employer passed up three potential candidates who are members of the LGBTQ community in favor of other candidates, you may be able to establish a pattern of discrimination.

If an employee can prove that he or she has been discriminated against due to being part of one of these protected classes, California employment discrimination laws may allow the employee to pursue legal action against the employer.

Whether you are seeking financial compensation, personal vindication, or simply to ensure this type of discrimination does not happen to others in the future, an attorney can assist you in clarifying your goals and evaluating the potential benefits and costs of filing an employment discrimination lawsuit.

With more than 30 years of employment law experience, our lawyers know how to work through the intricacies of the California Labor Code, the federal Fair Labor Standards Act, and other applicable laws. To get started, arrange a confidential consultation by calling (916) 446-2000.