Discrimination

Discrimination - General Background

Both the federal and the state governments have enacted laws to prohibit discrimination based on various criteria. The principal laws prohibiting discrimination in employment are:

Federal:

Title VII of the Civil Rights Act of 1964

Equal Pay Act of 1963

Age Discrimination in Employment Act of 1967

Americans With Disabilities Act of 1990

Family and Medical Leave Act of 1993

California:

Family Rights Act of 1991 (See page 48)

Fair Employment and Housing Act

Constitution, Article I, Section 8

Other Laws:

Besides the laws mentioned above, other laws prohibit discrimination when an employee exercises his or her rights. For example, California Labor Code section 132a prohibits an employer from discriminating against an employee for filing a workers' compensation claim.

Protected Categories and Definitions

This summarizes the primary categories of personal traits protected from discrimination in employment. Decisions on hiring, firing, compensation, and other terms, conditions and privileges of employment may not be based on a person's inclusion in a protected category.

Ancestry, Race, Color and National Origin

Both the federal and state lawsthat is, Title VII and the FEHAprotect persons from employment discrimination due to their race, color or national origin. The FEHA also prohibits discrimination on the basis of ancestry.

When hiring, an employer may not express a preference for or against an individual based on these characteristics. Job applications should not ask applicants to state such things as their "mother tongue," eye or hair color, height, or any trait that identifies a person by these characteristics.

Employers must provide a work environment free of harassment. For example, supervisors should be warned not to make derogatory comments about a person's race or racial characteristics. As agents of the employer, supervisors can expose the company to liability for their improper conduct in this area. For more on harassment see .

Wages, work assignments and schedules may not be based on unlawful considerations. Any employment procedure not justified by business necessity that disproportionately hurts the employment opportunities of a protected class of persons is prohibited. An adverse disparate impact exists where the procedure hurts members of a protected class more than persons outside that class. Thus, a height requirement not required by business necessity may be unlawful where it tends to screen out persons of a protected category disproportionately to persons not in that category.

Sex Discrimination

Under both federal and state laws, covered employers may not discriminate against an employee or job applicant on the basis of the person's sex.

Some of the practices that an employer should avoid are:

1. Classifying jobs as "men's" or "women's" work.

2. Maintaining seniority lists based on sex.

3. Prohibiting someone from applying for a job due to the prospective applicant's sex.

4. Laying off employees on the basis of gender.

5. Restricting employment or benefits of married females but not of married males.

6. Indicating a preference for persons of either gender in job selection or promotion.

7. Asking a question on an employment application that could provoke a response indicating the pplicant's sex.

8. Establishing wage scales based on employee's sex for equal or similar work.

9. Basing eligibility for fringe benefits such as health insurance on a "head-of-household" criterion.

10. Denying fringe benefits to a family member of a female employee while granting them to a family member of a male employee.

11. Basing eligibility for a job on a strength or agility test unless pursuant to a permissible defense. If the test is defensible, an employer cannot deny a person an opportunity to demonstrate his or her agility because of his or her sex.

12. Assigning work or hiring on the basis of a gender-stereotyped categorization of the job; for example, hiring only men to be equipment operators. 

13. Refusing to hire members of one gender because it would require separate facilities.

Equal pay laws prohibit employers from using the sex of a person to determine the rate of compensation. Both federal and state laws have specific provisions to protect employees from this type of discrimination.

The equal pay laws generally require employers to provide equal pay without regard to sex for equal work performed under similar working conditions requiring equal skill, effort and/or responsibilities. However, employers may use a number of factors to justify pay differentials unless the factors differentiate between the sexes. These factors are seniority systems, merit systems, pay based on quality or quantity of production, or other paying methods based on bona fide factors not related to sex.

Equal pay applies not only to wages but also to fringe benefits. Therefore, eligibility for benefits such as medical insurance or pension plans must not be based on sex.

Supervisor Harassment Training: The FEHA requires all California employers with at least 50 employees to provide supervisors with at least two hours of sexual harassment training every two years. In calculating whether a particular employer meets the 50-employee threshold, the law includes employees from a temp agency, and even independent contractors, in addition to direct employees. Further, the law does not specify that the 50 employees must be within California; it therefore at least arguably applies to California employers with 50 total employees, including those outside the state.

The term "supervisor," is a fairly expansive term under California law. In general, it includes any employee having the authority to exercise independent judgment to:

• Hire, fire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees;

• Direct the work of other employees or adjust their grievances; or

• Effectively recommend any of these actions.

The training requirement will be implemented in two phases. In the first phase, supervisors who are employed as of July 1, 2005, must go through at least two hours of training by January 1, 2006. Supervisors who have already gone through training since January 1, 2003, need not be re-trained until the new two-year period, which will start on January 1, 2006. If a supervisor is hired or promoted into a supervisory position after July 1, 2005, the training must be completed within six months of hire or promotion.

The second phase begins January 1, 2006. The law requires ongoing training for all supervisors within six months of becoming supervisors and at least two hours of harassment training every two years thereafter.

The training must include "information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment." Further, "the training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation." While it is not clear, the wording of the new statute indicates that simple taped programs will not be sufficient, but rather, the employer must provide the training through qualified trainers.

Meeting these requirements does not provide a defense to a sexual harassment claim, nor does failure to do so establish liability, in and of itself. However, failure to do the training will almost assuredly be urged as grounds for punitive damages in a sexual-harassment lawsuit.

Sexual Orientation

California Labor Code bans discrimination in employment or opportunity for employment based on actual or perceived sexual orientation.

Covered are employers who employ at least five employees on each working day in 20 or more consecutive weeks in the current or prior calendar year.

This employment protection does not require or permit the use of quotas or other affirmative action, nor does it infringe on an employer's right to base employment actions on the commission of conduct illegal in California.

Aggrieved employees may seek administrative remedies, including back pay with interest, reinstatement, cease-and-desist orders, and the posting of notices to employees. The Labor Commissioner may award reasonable attorney fees in those cases in which an administrative hearing is held.

Gender Identity Discrimination and Harassment: The prohibition against sex discrimination under the FEHA includes "gender." Section 422.76 of the Penal Code, which defines "gender" as "the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the victim's sex at birth."

Employers may require employees to comply with reasonable workplace appearance, grooming, and dress standards consistent with state and federal law. However, employees must be allowed to appear or dress consistently with their "gender identity," which appears to include cross-dressing.

Pregnancy, Childbirth, and Related Medical Conditions

Federal and state laws protect employees and applicants from discrimination because of pregnancy, childbirth and related medical conditions. Some of these provisions are identical, while others differ.

The size of an employer's workforce determines the set of provisions that covers the employer. The FEHA covers California employers regularly employing five or more employees, whereas the federal law (Title VII) covers employers with at least 15 employees on each working day in each of 20 or more weeks in the current or previous calendar year. See page 47 for a review the pregnancy-disability leave requirements.

Marital Status

The FEHA protects individuals from discrimination in employment based on the person's marital status, whereas Title VII does not. Discrimination in this category may take the form of denying employment or employment opportunities based on whether or not a person is married, divorced, separated or widowed, or is the spouse of a current employee.

Application forms should not ask questions, either directly or indirectly, about the marital status of an applicant. In only a few instances may an employer restrict job assignments based on the person's being married to a current employee. An employer may refuse to assign an employee to work under the direct supervision of his or her spouse based on business reasons of safety, security or employee morale. Also, an employer may refuse to assign a married couple to the same department, division or facility, if to do so would create potential conflicts of interest or other hazards that are greater for married couples than for other persons.

Employment decisions such as job assignments, travel or promotions may not be based on the child-rearing responsibilities of a married employee. Therefore, questions on application forms should not ask for number of children or the like.

Fringe benefits may not be available to employees based on their marital status. For example, an employer may not limit coverage under a health insurance plan to married employees on the ground that both spouses work for the same company. Nor may an employer designate that only married persons are eligible for health insurance.

Age Discrimination

Both federal and state laws prohibit discrimination in employment against any person on the basis of age. The federal Age Discrimination in Employment Act of 1967 (ADEA) and the state FEHA protect persons 40 or more years of age.

Employers must not establish a compulsory retirement age or use any generalizations about age as factors supporting their hiring, promoting, work assigning, or other employment decisions.

Employers may reject applicants or discharge employees who do not meet job requirements. An employer may require applicants or employees to submit to nondiscriminatory physical or medical examinations to determine their fitness for the job. Promotion within existing staff or hiring on the basis of prior experience, training, service or under an established recruitment program with high schools or colleges do not in and of themselves constitute a violation.

An employer may select the better-qualified person among applicants. One claiming a violation of age discrimination has the burden of proving it. (Govt. Code §12941(b).)

Disabilities

The federal Americans with Disabilities Act (ADA) and state FEHA prohibit discrimination in employment against individuals with disabilities.

An individual with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment, or who is regarded as having such an impairment. Thus, a cured cancer victim or an individual with a disfiguring scar may be disabled if that individual is regarded by others as being impaired.

"Major life activities" includes functions such as caring for oneself, walking, seeing, hearing, speaking, and working.

Impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the major body systems, or any mental or psychological disorder, such as mental illness, retardation, or specific learning disabilities. The ADA specifies that homosexuality and bisexuality are not impairments and thus are not disabilities.

A qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job. The employer determines what those essential functions are, with job descriptions considered primary evidence of the employer's intent. An individual who poses a direct threatthat is, a significant present risk of substantial harm to the health or safety of the individual or of othersis not qualified for the job.

Reasonable Accommodation:

A reasonable accommodation for an individual with a disability may include making existing facilities readily accessible; job restructuring; modifying work schedules; reassigning to vacant positions; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials or policies; providing readers or interpreters; or other similar accommodations.

The ADA does not require any accommodation that would impose an undue hardship on the employer's business. This means a significant difficulty or expense. To determine whether an accommodation would impose an undue hardship, these factors are considered:

1. The nature and cost of the accommodation;

2. The size, type, and financial resources of the specific facility where the accommodation would have to be made;

3. The size, type, and financial resources of the covered employer; and

4. The covered employer's type of operation, including the composition, structure, and functions of its workforce, and the geographic separateness and administrative or fiscal relationship between the specific facility and the covered employee.

Pre-Job-Offer Inquiries:

Before offering an applicant a job, an employer's ability to ask for disability-related information is very limited. Generally, employers may ask about the applicant's ability to perform job functions, but not in terms of disability. The employer may ask an applicant to describe or demonstrate how, with or without reasonable accommodation, the applicant would perform job-related functions. The request may be made of either all applicants in the same job category regardless of disability, or only applicants whose known disabilities may interfere with or prevent the performance of job-related functions.

Post-Job-Offer, Pre-Employment Medical Examinations:

An employer may require an applicant to take a medical examination after an offer of employment has been made to the applicant, as long as all new employees entering the same job category must take one and information obtained is kept confidential and in separate medical files. The exam may be given before employment duties begin, and an offer of employment may be conditioned on the exam's results. However, although the exam itself need not be job-related and consistent with business necessity, any factor on which the employer bases an offer's withdrawal must either be job-related and consistent with business necessity, or not screen out individuals with disabilities.

Employee Examinations:

Employers may require employees to take job-related medical examinations (fitness-for-duty-exams) consistent with business necessity to determine whether an employee remains able to perform the essential job functions. The exam's results must be kept confidential and in separate medical files.

Alcohol and Other Drugs:

The ADA does not prohibit employers from testing for the illegal use of drugs. These tests are not medical examinations under the ADA. Employers may prohibit the illegal use of drugs and alcohol at the workplace and may require that employees not be under the influence of alcohol or illegal drugs at the workplace. (Caution: California employers should proceed very carefully in implementing any mandatory drug-testing policy, as state court cases have held that discharging an employee for refusing to be tested, especially on a random basis and where the employee's job is not safety- or security-sensitive, may violate the state Constitution's privacy protections and thus public policy.)

The ADA does not protect the current illegal use of drugs, and an employer may hold those who use drugs illegally and alcoholics to its work standards. However, it does cover those who have been rehabilitated, who are participating in a supervised rehabilitation program and are not currently using drugs, or who are erroneously regarded as engaging in the illegal use of drugs.

Religious Discrimination

Both federal and state laws protect individuals because of their religious beliefs and background. Also, both Title VII and FEHA mandate that employers make a reasonable accommodation for known religious observances or practices of employees or applicants. If the accommodation would place an undue hardship on the employer, however, then the employer is relieved of his duty to make an accommodation.

Protected religious observances and practices are broad in scope. In fact, guidelines of the U.S. Equal Employment Opportunity Commission state that the "fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee."

As when confronted by an employee, an employer must reasonably accommodate an applicant or employee who notifies the employer of his or her desire that a religious practice or observance be accommodated.

Discrimination -- Other Laws

These laws specify actions that also constitute unlawful discrimination in employment.

Federal Fair Labor Standards Act (FLSA)

The FLSA provides it is unlawful to discharge an employee, or otherwise discriminate against an employee, because the employee filed a complaint or testified in a case relating to the FLSA.

Employee Polygraph Protection Act

The Employee Polygraph Protection Act of 1988 (EPPA) bans polygraph exams by most private employers. The EPPA prohibits most private employersincluding any person acting directly or indirectly in the interest of an employerfrom using any lie-detector test either for pre-employment screening or as a basis for discharging, disciplining, or failing to promote an employee. Employees who exercise their rights under the EPPA are protected against retaliation by their employers.

The EPPA requires employers to post a notice informing employees about the EPPA.

Agricultural Labor Relations Act

The Agricultural Labor Relations Act (ALRA) protects employees when exercising their rights of self-organization, to form, join, or assist a union, to bargain collectively, or to engage in other concerted activities. See section titled "Agricultural Labor Relations Act" starting on page 89.

Privacy In Employment

A developing area of law is the right of employees to privacy and not suffer discrimination because of activities not related to the job. This theory is rooted in Article I, Section 1, of the California Constitution, which cites privacy as an inalienable right.

Because privacy in employment is such a danger zone for employers, they should use caution in dealing with these subjects:

1. Surveillance and Intelligence Gathering

2. Disclosure of Personnel Information

3. False Imprisonment and Assault and Battery

4. Searches

5. Alcohol and Drug Testing

6. Background Checks

7. Records and Disclosure.

Reporting Requirements - EEO-1

Both state and federal anti-discrimination laws require employers with 100 or more employees to prepare annually a report. The reports assemble data on the sex, race, and ethnic composition of the employer's work force.

A copy of the federal Employer Information Report EEO-1 report (standard Form 100) must be filed with the Joint Reporting Committee no later than March 31, and the employer must retain a copy of the most recent report and make it available upon request from the Commission. Copies of the Standard Form 100 can be obtained from the Joint Reporting Committee, Federal Depot, 1201 East 10th Street, Jeffersonville, Indiana 47130.

The state report, California Employer Information Report (CEIR), merely needs to be completed and made available to the FEHC and DFEH upon request. FEHC Regulations allow employers to use the EEO-1 Report Form instead of the CEIR form.

Employee's Off-Work Activities

The Labor Commissioner has the authority to pursue on behalf of employees claims for loss of wages due to their demotion, suspension, or discharge from employment for lawful conduct occurring during non-working hours away from the employer's premises. (Labor Code section 96, subdivision (k).)

Labor Code section 98.6 provides that an employee who is discharged or otherwise discriminated against for such conduct is entitled to reinstatement, as well as lost wages and benefits. Those protections extend beyond just current employees: Applicants refused employment due to lawful off-duty conduct are entitled to employment and reimbursement for lost wages and work benefits.

Section 98.6 does allow certain employment contracts or collective bargaining agreements that protect an employer from conduct that is in "direct conflict" with its "essential enterprise-related interests" and that would actually create a "material and substantial disruption" of its operations. The law protects only employers that incorporate conflict-of-interest policies in employment agreements. Further, the exception encompasses only conflict-of-interest agreements executed by applicants and not those executed by existing employees.

One Court of Appeal decision severely limited the statute's scope by concluding that the conduct in question must be otherwise protected by a provision of the California Labor Code. (Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 88.)