Discrimination & Harassment

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It is usually illegal for an employer to discriminate or harass an employee because of her age, sex, sexual orientation, race, religion, pregnancy, medical condition, or for engaging in a legally protected activity.


An employer may not discriminate against or harass an employee because of race, religion, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, age, or sexual orientation.  Two types of discrimination claims are recognized under California and federal law: disparate treatment and disparate impact.  A disparate treatment action lies where an employee is treated less favorably than similarly situated employees because of membership in a protected class.  A disparate impact provides that employment practices may be considered discriminatory and illegal if they have a disproportionate "adverse impact" on members of a minority group.

Claims for specific types of discrimination and the defenses to those claims are discussed on separate pages linked to in the menu at right.  The only state that prohibits discrimination based on height and obesity is Michigan.  But some cities like San Francisco prohibit discrimination based on obesity.  California courts will recognize discrimination claims based on obesity where the plaintiff demonstrates that his specific case of obesity is a disability.

An employer also may not harass or permit other employees to harass an employee because of race, religion, national origin, ancestry, physical or mental disability, medical condition (including pregnancy), marital status, sex, age, or sexual orientation.  To prevail in a harassment claim, the plaintiff must prove that there was a "hostile work environment" which means that the conduct involved would have interfered with a reasonable person's ability to perform her job and that it actually affected her.

Harassment is usually conduct outside of the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.  Harassment can be verbal, physical, or visual (for example, derogatory posters, cartoons, or drawings).  But California's Fair Employment and Housing Act is not a "civility code" and does not create liability for conduct that is rude, crude, or mean if it is not on account of the employee's race, religion, national origin, ancestry, physical or mental disability, medical condition (including pregnancy), marital status, sex, age, or sexual orientation.

If an employer or coworkers 'harass' an employee at work, but not on account of her race, religion, national origin, ancestry, physical or mental disability, medical condition (including pregnancy), marital status, sex, age, or sexual orientation, it's usually not illegal.  A 'hostile work environment' does not mean one that is merely intolerable.  It must be intolerable because of harassment on account of the employee's legally protected characteristic.

Many employees suffer intolerable work environments at one time or another.  That is not sufficient reason to sue an employer for harassment.

Disparate Treatment

In a disparate treatment claim, the question is whether the employer's actions were motivated by discriminatory intent.  An employee can show discriminatory intent by direct evidence, or through indirect or circumstantial evidence. In Title VII disparate treatment cases, courts consider a motion for summary judgment under the legal framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Under McDonnell Douglas, a plaintiff alleging disparate treatment must first establish a prima facie case of discrimination.  Id. at 802.  Specifically, the plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.  Id.  The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.  If the employer does so, the plaintiff must show that the articulated reason is pretextual “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).  The McDonnell Douglas framework is also applicable to discrimination claims under California’s Fair Employment and Housing Act.  Clark v. Claremont University Center, 6 Cal.App.4th 639, 662 (1992).

Disparate Impact

Under federal law, a plaintiff may prove a violation of Title VII of the 1964 Civil Rights Act by showing that an employment practice or policy has a disproportionately adverse effect on members of a protected class as compared with non-members.  EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, 92 (N.D. Ga. 1981)

A facially neutral employment practice is one that does not appear to be discriminatory on its face, but may be discriminatory in its application or effect.  Where a plaintiff shows a disparate, he can prevail without showing intentional discrimination unless the employer demonstrates that the practice or policy has a demonstrable relationship to the requirements of the job in question.  Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1977).  This is called the "business necessity" defense.

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We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.


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