• Discrimination in Employment
  • June 17, 2003 | Authors: Joyce A. McCoy; J. Scott Scheper
  • Law Firm: Seltzer Caplan McMahon Vitek, [incorporation phrase format]A Law Corporation - San Diego Office
  • In California, most employees and employers are subject to laws prohibiting discrimination and harassment in employment.

    Title VII of the Civil Rights Act of 1964 [42 USCA § 2000(e), et seq.] makes it an unlawful employment practice for an employer to engage in employment discrimination against any individual based on the individual's race, color, religion, sex, or national origin. Title VII prohibits not only overt, discriminatorily-motivated disparate treatment of protected individuals, but also may be invoked to attack facially neutral practices which have a disparate (i.e., disproportional) impact upon a protected class. While certain entities are excluded, generally speaking an employer will be subject to the requirements of Title VII if the employer has 15 or more employees for each working day in each of 20 or more calendar weeks in a calendar year and the employer is engaged in an industry affecting commerce.

    Another Federal statute is the Age Discrimination in Employment Act of 1967 ("ADEA") [29 USCA §§ 621-634], which makes it unlawful for an employer to engage in employment discrimination against a protected individual because of the individual's age (over 40). The ADEA applies to employers who have 20 or more employees for each working day in each of 20 or more calendar weeks in a calendar year and which is engaged in an industry affecting commerce. The ADEA broadly defines commerce as "trade, traffic, commerce, transportation, transmission, or communication among the several states; or between a state and any place outside thereof, or within the District of Columbia, or a possession of the United States; or between points in the same state but through a point outside thereof." Likewise, "industry affecting commerce" is defined as any activity, business or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce . . . ." However, the ADEA recognizes an exception for making age a criterion of a person's employment where age "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business."

    The Americans with Disabilities Act of 1990 ("ADA") [42 USCA § 12101, et seq.] prohibits discrimination and requires certain affirmative action in the employment of individuals with mental or physical disabilities recognized by the Act.1 The ADA covers virtually all employers except the Federal government. Title I of the ADA which prohibits discrimination against a disabled individual with respect to job application procedures, hiring, advancement or discharge of employees, compensation, training and other terms, conditions and privileges of employment. Title I applies to private employers with 15 or more employees in each of 20 or more calendar weeks in a year.

    Under the ADA, "disability" refers to an individual having (1) a physical or mental impairment which substantially limits one or more of the individual's major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. The ADA and developing case law have further defined "physical or mental impairment." Importantly, the ADA prohibits discrimination only against individuals with a disability who otherwise are qualified for a particular job. The individual must possess the requisite educational background, experience, skills, licenses and other prerequisites for the position and must be capable of performing the essential functions of the position, either with or without reasonable accommodation. One of the key requirements of the ADA is that an employer must reasonably accommodate a person who has certain limitations because of a disability in order to enable that person to perform the essential functions of the position. Examples could include providing wheelchair access into a building at the top of a flight of stairs, providing a reader for a blind employee, giving civil service tests by audio tape to blind applicants, or providing assistant devices for the hearing impaired.

    In addition to the federal statutes, California separately has enacted the Fair Employment and Housing Act ("FEHA"), which applies to employers within the state. FEHA protects the rights of all persons to seek, obtain and hold employment without discrimination based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age [at least 40] or pregnancy. (See California Government Code sections 12900, 12996.) FEHA defines "employer" as any person regularly employing 5 or more persons, except that the prohibition against harassment applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor.

    Under FEHA and the cases and regulations applying it, sexual harassment is also prohibited. The prohibition against sexual harassment arises under the protection afforded on the basis of sex or gender, but actually can be viewed as a separate category. People have a right to work free from unwanted sexually-based harassment. It should be understood that sexual harassment is not limited to conduct between members of the opposite sex but can arise from conduct between two women or two men: same sex sexual harassment.

    There are two types of sexual harassment: "quid pro quo" and "hostile work environment."

    1. Quid Pro Quo sexual harassment:

    This is the less common form of sexual harassment, but the one which most people associate with the term. "Quid pro quo" is a Latin term meaning, literally, "this for that." It refers to conduct by which some aspect of an employee's employment is explicitly or implicitly conditioned on the exchange of sexual favors.

    2. Hostile work environment sexual harassment:

    This form of sexual harassment is lesser known than quid pro quo, and consists essentially of: (a) unwelcome conduct; (b) of a sexual nature or for which gender is a motivating factor; (c) that is severe or pervasive; and (d) that has the purpose or effect of altering the conditions of employment and creating an intimidating, hostile or abusive work environment. Unwelcome conduct can come in many forms, including:

    • Verbal (e.g., offensive comments or whistling)
    • Visual (e.g., pin-up calendars, crude e-mails and lustful staring) or
    • Physical (e.g., unwanted touching or cornering someone, invading their "space")

    Importantly, the conduct must be seen as unwelcome from two perspectives:

    • Subjective: the person complaining must have been intimidated or offended
    • Objective: a "reasonable" person of the same gender in a similar position would have found the conduct intimidating or offensive

    An employee who believes he or she has been victimized and wishes to make a claim under one or more of these statutes may be required to pursue administrative remedies, essentially seeking redress through governmental agencies such as the California Department of Fair Employment and Housing (DFEH) or similar federal agency, before pursuing court action. Finally, employers generally are prohibited from retaliating against employees who assert or assist in making or investigating a claim under those statutes.

    Suggestions for employers and employees: For employers, (1) inform your employees that discrimination and harassment will not be tolerated; (2) adopt, implement and enforce written "no discrimination" and "no harassment" policies; (3) consider periodic orientation and training for all employees, and particularly management; (4) investigate and take seriously any complaints. For employees, (1) conduct yourself professionally in the workplace; (2) treat your fellow employees fairly and with respect, as fellow team members; (3) report to management if you observe or are on the receiving end of any improper or unwanted conduct.

    1The Rehabilitation Act of 1973 contains similar mandates of nondiscrimination and affirmative action for the employment of individuals with disabilities by federal government agencies, certain federal government contractors and recipients of federal financial assistance. (See 29 USCA Section 791, et seq.)