Discrimination

FACT: Both California and Federal law expressly prohibit discrimination in the workplace.

What is Discrimination?

Discrimination occurs when an employee is treated differently from other employees in the same or similar circumstance (what the law calls “similarly situated employees”), because of a “protected” characteristic such as gender, age, military status, national origin, sexual orientation, religious creed, genetic information, physical disability, marital status, race, sex, gender identity, veteran status, ancestry, medical condition, color, and mental disability.  A few examples of when discrimination occurs in the workplace are hiring, job titles, benefits, compensation, training, support, transfers, promotions, firings and other terms and conditions of employment. Evidence of discrimination can be direct or indirect.

For discrimination and harassment to be unlawful, under California law, it must be based on a “protected characteristic.”

Under California’s Fair Employment and Housing Act (FEHA), “protected characteristics” include:

  • Race: Employers are prohibited from discriminating against or harassing employees because of their race.  Examples of race discrimination include not being denied an employment opportunity, not being considered or receiving a promotion, or being treated differently because the employee is a Chinese-American or Latin-American.  This can also include racial slurs or preferential treatment on a harassment basis as well.
  • Color: Similar to race, employers also cannot discriminate against or harass employees based on their color.  For example, if an employee requests a promotion and is denied because the employer prefers “lighter-skinned” employees or applicants, then the employee may have a potential claim for discrimination based on color
  • National Origin: (including language use restrictions) and Ancestry National Origin refers to where the person was born or where a person’s ancestors originated from.  Workplace discrimination and harassment based on national origin and ancestry is illegal.  Thus, if an employer makes direct or indirect statements regarding an employee’s national origin or ancestry and discharges or demotes the employee based on his or her national origin or ancestry, then the employee may have a claim for discrimination and/or harassment based on national origin and ancestry.

Importantly, national origin discrimination may also be present where an employer has policies preventing employees from using other languages in the workplace without a business necessity.

Because there is not always direct evidence (for example, actual statements by the employer) of discrimination based on race, color, national origin, and ancestry, an employee may be able to rely on statistical evidence to establish his or her claim that the employer has systematically engaged in discrimination in its employment practices.

  • Religion/Religious: Creed Discrimination or harassment because of an employee’s religion or religious beliefs is illegal.   Religion is broadly construed to encompass virtually all aspects of religious beliefs or religious practices.  In addition, the law protects not only those commonly recognized religions, but also other belief systems so long as the belief is sincere.  An employer can be required to provide a reasonable accommodation for religious practices under certain circumstances.
  • Physical and Mental Disability: Discriminating against an employee with a physical disability is illegal if the employee is able to perform the essential functions of the position.  The definition for a physical disability is broad and covers conditions that limit a major life activity.  This can include certain mental and emotional disabilities
  • Medical Condition: Discrimination and harassment based on a medical condition is also prohibited.  Like disabilities, what constitutes a medical condition is subject to a broad standard.  One basic example is cancer, but it can also include many other medically diagnoses.  An employer can be required to provide a reasonable accommodation for an employee’s medical condition and engage the employee in an interactive process to determine what reasonable accommodations it can provide.
  • Genetic Information: In 2012, FEHA added genetic information to its list of protected characteristics. This can include information surrounding a genetic test of an employee or family member or anything that could signal a likelihood of a genetically transmittable disease or disorder.  Information about an employee’s sex or age, however, is not genetic information.
  • Marital Status: Information about an employee’s marital status (whether an employee it married, divorced, unmarried with a partner of either sex, or widowed) is also an area protected from harassment and discrimination.  Examples of situations where discrimination based on marital status may be present includes comments or actions by the employer basing employment decisions on the employee’s marital status, such as denying a promotion because the employee is married with children and presumed to have less time to devote to work.
  • Sex and Gender Discrimination: If an employer discriminates or harasses an employee because they are either male of female, it is a violation of the law. This broadly includes any physical differences and stereotypes of both genders.  In California, this can also include appearances related to gender assignment and appearance.  One example of gender discrimination that will be moving more and more into the forefront of litigation is pay disparity, meaning one gender is paid less than the other for the same work.
  • Pregnancy or Related Conditions: Employers cannot discriminate against an applicant or employee because of pregnancy or pregnancy related conditions.  Pregnant employees are also entitled to leave of absence protections, such as Family Medical Leave, California Family Rights Act Leave, and Pregnancy Disability Leave.  Similar to disabled employees, pregnant employees are also entitled to reasonable accommodations
  • Gender Identity/Gender Expression: In general, gender identity and express relates to an individual’s appearance relative to their birth gender.  Discrimination and harassment based on gender identity and expression is prohibited by law.  This includes a requirement that dress codes include that an employee must be allowed to dress consistently with both the employee’s gender identity and gender expression.
  • Age: Employees who are 40 years old and over are protected from discrimination and harassment when they are treated differently from younger employees.
  • Sexual Orientation: Employees are protected from discrimination based on their sexual orientation.  Treating an employee differently in this respect, or taking adverse action against them, is prohibited by law
  • Military Veteran Status: An employer is prohibited from any discrimination, harassment, or retaliation because an employee serves in the military.
  • Associational Discrimination: Employers are prohibited from discriminating against its employees on the basis of these characteristics.  Even if employees do not have these protected characteristics, employers cannot discriminate against them if they perceive the employee as having that protected characteristic or perceive the employee as being associated with a person with a protected characteristic.

If you believe you have been subject to discrimination in the workplace, you should speak to a discrimination attorney immediately.

Contact Ares Law Group NOW for a FREE consultation regarding YOUR claim.

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Need advice?  Want to review a potential claim?  Contact us NOW for a FREE consultation by calling (949) 629-2519 or fill out the form below and we will get back to you promptly.

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