Workplace discrimination is illegal. Workplace harassment is illegal.
California law, including the Fair Employment and Housing Act (“FEHA”), protects employees from discrimination, harassment, and retaliation for reasons of race, ethnicity, gender, sexual orientation, disability, and other protected categories.
What is discrimination?
Discrimination in the workplace can take many forms but the central feature that all acts of discrimination in the workplace share is that an employee has somehow been treated differently from other employees for reasons of race, gender, sex, age, disability status, or other protected category.
A claim for discrimination requires showing that an 1) employee; 2) suffered an adverse employment action; 3) for reasons of being or being regarded as a person belonging to a protected category. Some examples of discrimination:
- Being denied a job promotion because of one’s race;
- Being terminated because of one’s gender;
- Being paid less because of one’s sexual orientation.
The key to proof in discrimination cases is showing the “because of” prong–i.e., that there was no legitimate business purpose for the employers decision to act in some way contrary to the employees’ interests.
What is harassment?
The line between harassment and discrimination can be difficult to discern but the basic difference is that harassment claims involve conduct unrelated to one’s job duties or benefits. For example, yelling at an employee and belittling an employee for reasons of a disability are more likely to fall under the “harassment” rubric than discrimination. Compare, however, to denying an employee a pay raise for reasons of disability, which is a form of discrimination.
What is retaliation?
California’s FEHA also provides that employees must not suffer adverse employment actions after good-faith complaints of discrimination or harassment. This is true even if the complaints were not found to be substantiated, for example, following an investigation. These protections mean that employers must not terminate, demote, reduce pay, remove from scheduling, or subject an employee to any other consequence as a result of a complaint of discrimination or harassment.
Failure to Prevent Discrimination, Harassment, or Retaliation
California’s FEHA requires that employers take reasonable steps to prevent discrimination, harassment, and retaliation. Those steps include mandatory training, a process to report complaints of discrimination, harassment, and retaliation, a requirement that employers conduct fair and impartial investigations of complaints, among others.
Recovery for Claims of Discrimination, Harassment, or Retaliation
The typical recovery in cases involving discrimination or harassment is the amount of wages one would have earned had there been no discrimination or harassment, plus other damages such as those for mental distress. This assumes that there is liability. No case is easy. No case is guaranteed.