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The word “discrimination” is often overused and stretched beyond its legal meaning. “Discrimination” is often used as a synonym for anything an employee may personally believe is unfair. In employment law, however, the word “discrimination” is more narrowly defined and limited in context.
Discrimination Defined: Legally, the term “discrimination” covers only actions that are taken against people because they belong to certain protected classes. To discriminate means to treat those people in some way differently than other people who are not in the same class. Discrimination happens in many ways, some of which may not be intentional. For example, a supervisor does not usually decide to overlook a person for promotion because of race or gender. Certain acts can constitute unlawful discrimination because of their effect, regardless of the motivation for these acts.
Unequal (Disparate) Treatment: Disparate treatment discrimination can occur when an employee who belongs to a protected class is treated differently, specifically because of his/her protected class status. In rare circumstances, the employee has direct evidence of unequal treatment, such as a manager who admits he terminated an employee because of race. However, in most cases, the employee does not have direct evidence and must prove his/her case by inference. In a failure-to-hire case, the applicant bears the initial burden of establishing the following four criteria:
Similar criteria can be applied to employment decisions other than hiring, such as promotions or terminations. To establish discrimination in cases related to employment decisions, the employee must initially establish the following four criteria:
If an employee shows that he/she was forced to leave employment because of intolerable or discriminatory working conditions, disparate treatment may have occurred. You can dispute a disparate treatment claim by showing that either:
If you are able to demonstrate a legitimate, nondiscriminatory reason for your action, the employee must then prove that your action was motivated by a discriminatory reason or that your stated explanation is untrue.
Unequal (Disparate) Impact: An employment practice that appears to be neutral but, in practice, discriminates against protected classes creates a disparate impact, which violates anti-discrimination laws. A common example is a weight and height requirement that adversely impacts women but is not actually required for the job. In disparate impact cases, an employer’s motivation to establish the particular employment practice is irrelevant. If an employee can show that an apparently neutral policy creates a harsher impact on a protected class, that policy is illegal unless the employer can show that the practice is job-related and consistent with business necessity. However, a plaintiff can prevail by demonstrating that another business practice exists that would produce a less discriminatory effect and that the employer refused to adopt that practice.
Discriminatory Intent: The U.S. Supreme Court potentially expanded employer liability for discrimination and harassment claims when it ruled in 2011 that an employer can be liable for wrongful termination even if the manager who ultimately makes the termination decision acted with no discriminatory intent. In Staub v. Proctor Hospital, Staub was a military reservist. He claimed that two of his immediate supervisors demonstrated bias against him because of his military status and military obligations. These two supervisors allegedly passed on false information to the vice president of HR in an attempt to have Staub fired. The VP relied on that information in deciding to terminate Staub. The employer claimed that there was no evidence that the ultimate decision maker, the VP, had any hostility toward Staub based on his military status. Staub argued that the VP’s decision to terminate him was based on the reports by his supervisors that reflected their bias against him. The Court sided with Staub. Though this case involved military leave, the analysis will apply to discrimination claims. Simply having a centralized person, such as the HR director, doing the hiring and firing will not insulate an employer from liability from supervisors who engage in discriminatory conduct.
Protected Classes: California law creates specific legal protections against discrimination based on individuals belonging to protected classes. In California, discrimination based on the following protected bases is prohibited:
FEHA Covers Perceptions and Associations: FEHA protects not only actual membership in the classes that FEHA specifies, but also perceived membership in one or more of those classes. For example, an individual could file a sexual orientation discrimination charge, claiming that he was discriminated against because he was perceived as homosexual even if he is not, in fact, homosexual. In addition, FEHA protects a person if he/she associates with a person who has, or is perceived to have, any of the characteristics that FEHA protects
Adverse Employment Action: One of the elements an employee must prove in either a disparate treatment discrimination case or a retaliation case is that the employee experienced an “adverse employment action.” Neither federal nor state anti-discrimination laws specifically define “adverse employment action.” The Ninth Circuit Court of Appeals and the California Supreme Court each expressed different views on what constitutes an adverse employment action.
The Ninth Circuit Court of Appeals, relying on the definition that is contained in the Equal Employment Opportunity Commission (EEOC) Compliance Manual, uses a “deterrence test.” Under the deterrence test, an adverse employment action is an action that is reasonably likely to deter employees from engaging in a protected activity. This type of adverse employment action can include a lateral transfer, poor performance ratings, exclusion from activities that would lead to salary increases, denial of secretarial support, a more burdensome work schedule or an unfavorable job reference.
The California Supreme Court takes a more restrictive view in interpreting FEHA. The California Supreme Court agrees with the federal courts that an adverse employment action is not limited to “ultimate” employment acts, such as hiring, firing, demoting or failing to promote an employee. But, the employer’s action must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment. A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient. This higher standard prevents “judicial micromanagement of business practices” and “frivolous suits over insignificant slights.” An action is minor if, from an outside perspective, the action is not likely to do more than anger or upset an employee. Minor actions do not materially affect the terms, conditions or privileges of employment and do not qualify as discrimination. But an employee can claim discrimination for adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.