Discrimination & Harassment

You have rights under both Federal and California law.

Employers are prohibited from terminating, disciplining, or otherwise discriminating against employees on the basis of race, sex, color, national origin, religion, age, or disability. The California legislature has also revised California law so that beginning on January 1, 2000, discrimination on the basis of sexual orientation is also prohibited. These laws also prohibit harassment on the basis of these protected classes. Employers also have an affirmative duty to reasonably accommodate employee's disabilities or religion, so long as the  reasonable accommodation does not cause the employer undue harm.

Discrimination claims generally fall into two categories: disparate treatment and disparate impact. Disparate treatment cases occur when an employee intentionally discriminates against an employee because of her membership in a protected class. Disparate impact cases occur when the employee's facially neutral policies have the effect of unduly harming an individual or individuals in a protected class.

With some variation for particular situations, litigating disparate treatment cases generally follows the model laid out by the United States Supreme Court. First the employee must prove there is a prima facie case, usually by showing that he is a member of the protected class and that he suffered termination, discipline, or some other adverse employment event. If he successfully does that, then the employer has the opportunity to show that there was some non-discriminatory reason for the adverse employment event took place. If the employer can do that, then the burden switches back to the employee to prove that the reason offered was just a pretext.

In disparate impact cases, it is not necessary to prove an intent to discriminate. However, a higher degree of proof, often involving complicated statistical analysis, is often required.

Harassment cases also generally fall into two categories: quid pro quo and hostile environment cases. Quid pro quo cases are the classic type of sexual harassment cases where a supervisor forces or attempts to force an employee to engage in sexual acts in order to keep her job, get a promotion, or avoid termination or other adverse action. Hostile environment cases occur where severe and/or pervasive acts of harassment based on an employee's membership in a protected class create an employment environment that any reasonable person would consider intolerable.

Employer's are liable for acts of sexual harassment by one employee against another employee if the employer (or any supervisor) knew or should have known about the conduct and failed to take reasonable steps to prevent it. Employers are also liable if they fail to implement harassment policies designed to effectively prevent such conduct.

Disability discrimination is one of the areas of the law most in flux. Many changes have already occurred since the Americans with Disabilities Act was first passed by Congress in 1990. Among the issues that continue to need clarification are what exactly constitutes a disability, what accommodations are reasonable, and what constitutes undue hardship.

Federal employment discrimination and harassment laws generally apply only to employers who employ 15 or more employees. California law is applicable to employers who employ 5 or more people.

Damages for violations of any of these statutes can include lost wages and benefits, medical expenses for any required therapy, emotional distress damages, punitive damages (in some cases), and reasonable attorney's fees.

NOTE: None of the information on this page should be taken as legal advice for any specific situations, nor can it substitute for consulting with an attorney.

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