Discrimination Attorneys

What is Employment Discrimination?

In simplest form, discrimination in the workplace occurs when an employee is treated differently than the rest of their coworkers in the same or similar circumstance (what the law calls “similarly situated employees”) because of qualities such as gender, age, military status, national origin, sexual orientation/sexual preference, religious creed, genetic information, physical disability, marital status, race, sex, gender identity, veteran status, ancestry, medical condition, color, and mental disability (what the law calls “protected characteristics”). Discrimination can occur at varying times throughout the employment experience including, interviews, pay and benefits, promotions, job assignments and, the most obvious, in the termination or separation of employment. Most cases of discrimination rely on indirect evidence to establish the wrongful conduct, such as statistical evidence to establish an employer systematically discriminated against people over 40) and rarely is there direct evidence of discrimination (such as explaining to an employee they are being laid off because they are “too old.”)

For both 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
Employees cannot be discriminated against or harassed because of their race under California law. An example of race discrimination would be failing to receive a promotion or being terminated because the employee is Chinese-American or Latin-American. This can also include racial slurs or preferential treatment on a harassment basis as well.

Color
Similar to race, an employer also cannot discriminate against an employee because of their color.
An example of this would be if an employee requests a promotion and is denied because the employer prefers “lighter-skinned” employees or applicants.

National Origin (including language use restrictions) and Ancestry
Discrimination on the basis of national origin refers to where the person was born or where a person’s ancestors originated from. Here, national origin would occur if an employee terminates an employee solely because they are from Mexico.

In California, it is also very important to note that national origin discrimination can occur when an employer has policies preventing employees from using other languages in the workplace without a business necessity.

Religion/Religious Creed
An employer cannot discriminate against an employee because of their religion or religious beliefs.
Religion is broadly interpreted to include 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. Here, an employer can be required to provide a reasonable accommodation for religious practices under certain circumstances.

Physical and Mental Disability
If an employee has a physical disability, an employer cannot discriminate against them in any way if they are able to perform the essential functions of their job. The definition for a physical disability is broad and covers a variety of conditions that limit a major life activity. This can include 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 also broad. One basic example is cancer, but it can also include many other medically diagnoses. Here again, 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 characteristics prohibited from discrimination. Genetic information can include 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
Whether an employee is married, divorced, unmarried with a partner of either sex, or widowed is also that an employer cannot use as a basis for employment decisions. 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 and harassment because an employee if male or female violates the law including physical differences and stereotypes. 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
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.

In the past year our employment law attorneys have seen an increase in the amount of calls that we receive about cases of gender identity discrimination.

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/Sexual Preference
Employees are protected from discrimination based on their sexual orientation or sexual preference. 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 an employment attorney immediately. Contact Ares Law Group now for a FREE consultation regarding your claim.