EMPLOYMENT DISCRIMINATION

Employment discrimination is a form of discrimination based on race, gender, religion, national origin, physical or mental disability, age, sexual orientation, and gender identity by employers. Earnings differentials or occupational differentiation—where differences in pay come from differences in qualifications or responsibilities—should not be confused with employment discrimination. Discrimination can be intended and involve disparate treatment of a group or be unintended, yet create disparate impact for a group.

“Discrimination” means being treated differently or unfairly. Discrimination in employment is illegal when the treatment is based on a personal characteristic or status, such as sex or race, which is protected under anti-discrimination laws. Since the law prohibits discrimination based only on certain protected categories, not every form of discriminatory or unfair treatment is illegal. . Discrimination can be expressed through “harassment,” when a boss, supervisor, or co-worker says or does something that creates an intimidating, hostile or threatening work environment. Harassment is illegal if it is based on a personal characteristic or status protected under anti-discrimination laws. To be illegal, the harassment must be so “severe or pervasive” that it interferes with the employee’s ability to perform the job.    Several federal and state laws protect people against many types of discrimination in employment. There are various federal laws prohibiting employment discrimination, including but not limited to: Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on race, color, sex (including sexual harassment), national origin (including characteristics related to one’s national origin, such as language), religion, and pregnancy; The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability; The Age Discrimination in Employment Act (“ADEA”) prohibits discrimination based on age (40+). Immigration Reform and Control Act of 1986 (“IRCA”) prohibits discrimination based on national origin and citizenship. 42 U.S.C. § 1981 (“Civil Rights Act of 1866”) prohibits discrimination based on race and national origin in the ability to “make and enforce contracts,” which has been interpreted to apply to many aspects of employment. California’s main anti-discrimination law in employment is the Fair Employment and Housing Act (“FEHA”), which prohibits discrimination based on race, color, sex (including sexual harassment), national origin, ancestry, disability, sexual orientation, gender identity (including transgender status), medical condition (cancer), pregnancy, marital status, and military status.  Additional protections against discrimination are found in the California Labor Code, including protections for crime victims who testify at trials, employees who take time off for jury duty, and victims of domestic violence, sexual assault and stalking.

Identifying discrimination

These state and federal laws prohibit employers from refusing to hire a job applicant, firing an employee, or changing other terms and conditions of employment (such as pay or benefits) if the reason for the action is that the employee or job applicant is a member of a protected group. Discrimination can take different forms and does not even have to be intentional to be illegal. Two general types of discrimination the law protects against are: “Disparate Treatment”: This means that an employer intentionally singles out an individual or a group of people for unequal treatment for an illegal reason. For example, a victim of “disparate treatment” might be someone who is: denied a position or a promotion because of race; made to feel unsafe or humiliated because of repeated remarks made by a supervisor or co-workers about women or people of color; pressured by a superior to engage in sexual activity in order to keep a job; threatened because of sexual orientation. “Disparate Impact”: This term applies when an employer has a policy or practice that has the effect of discriminating—even though it doesn’t single out a protected group for different treatment—and which is not related to an actual requirement of the job. This type of discrimination does not have to be intentional to be illegal. Examples of such policies or practices include: imposing lifting requirements for a job that does not actually require lifting (such requirements tend to exclude women or people with certain disabilities); a written test that excludes almost all non-white people and is not related to the job requirements; forbidding employees from speaking any language other than English at all times at work.

What can I do if I am being discriminated against?

Protect yourself:

  • Keep a journal at home recording incidents of suspected discrimination or harassment. Write down dates, times, and witnesses to any such incidents. Documenting wrongful conduct when it happens will help if you ever need to take action such as a lawsuit.
  • Keep copies of all important letters and documents that you send to your employer or that the employer sends you.
  • In cases of sexual or racial harassment, complain to a manager or supervisor promptly (unless that person is the harasser and complaining to him/her will be fruitless). You may also complain to human resources. Follow up with a written complaint; keep a copy for yourself. If you do not complain, the employer might later say that it did not know about the harassment.
  • If in doubt, do not sign anything without legal advice. Be careful of documents that require you to agree to waive your right to bring a complaint, or require you to arbitrate disputes with an employer.

Consider your options: It may be best to try to resolve the situation informally by first speaking with a supervisor or manager. Follow your employer’s grievance procedure, if it has one. Talk with your union representative or someone in the employer’s human resources or personnel office if you do not belong to a union. You can also choose to file an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH), which will investigate your complaint free of charge and try to resolve the problem. If you file a complaint with one of these agencies, you should request that it “cross-file” your claim with the other agency as well. You must file a complaint with the EEOC within 300 days of the last act of discrimination or harassment, or with the DFEH within one year of the last act of discrimination.  (Note: federal government employees must file with their agency’s EEO office within 45 days). If you do not file a complaint within these time limits, you may lose your right to legal protection from the discrimination or harassment.

If the EEOC or DFEH finds evidence of discrimination and is not able to reach a settlement between you and the employer, the agency may “prosecute” your case by holding a formal hearing or filing a lawsuit on your behalf. You should be aware, however, that the EEOC and DFEH are very selective about which cases they will prosecute and therefore prosecute very few of the thousands of complaints they receive each year. If the EEOC or DFEH chooses not to prosecute your case, you will receive a “right to sue” notice from the agency. (Note: you can request a right to sue notice at any point in the investigation process, which will stop the agency’s investigation.) Only after you receive a right to sue letter can you file your own lawsuit in court. If you get a right to sue notice from the EEOC, you must file a lawsuit within 90 days. If you get a right to sue notice from the DFEH, you must file a lawsuit within one year. If you do not file a lawsuit within these time limits, you may lose your legal right to file a lawsuit regarding the discrimination or harassment.

Claims under IRCA of citizenship discrimination, or national origin discrimination against businesses with 4-14 employees, may also be filed with the U.S. Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices within 180 days of the discriminatory act.
What if I am fired or disciplined for complaining?

Under state and federal law, it is illegal for a person or company to retaliate against someone who complains about discrimination or harassment in the workplace. Retaliation may include actions such as terminating an employee, moving an employee to less favorable assignments or shifts, providing undeserved negative evaluations to an employee, or intensifying the original harassment. If anyone (including a co-worker or supervisor) retaliates against you for either bringing a formal complaint or otherwise protesting unlawful discrimination at your worksite, you can file a retaliation claim with the EEOC or DFEH.  California Labor Code discrimination and retaliation complaints are filed with the California Labor Commissioner.

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