Discrimination

California’s Fair Employment and Housing Act provides a broader degree of protection to employees than Title VII. To begin with FEHA as codified under California Government Code § 12900 et seq. reaches small employers (five or more employees) which would not be subject to Title VII. FEHA also protects against discrimination base don marital status.  Following paragraphs will address some of the more basic protections extended to an employee by FEHA. For a more in depth analysis and discussion of your particular case please contact us.  Just as the EEOC is vested with the duty to administer federal labor laws, in California Department of Fair Employment and Housing (DFEH) has the same authority. To begin with it must be stressed that in order for an affected employee to seek to rely on FEHA for an alleged violation of his or her rights he or she must either exhaust the Department’s administrative remedies or seek a “right to sue notice” from the Department. Employees are encouraged to contact the attorneys at the Employment Law Team ™ or DFEH so as to protect their rights. Following is the link to DFEH which discusses the claim filing procedure:  http://www.dfeh.ca.gov/complaintRtoS.asp.

Who is Protected:

FEHA applies to employees or applicants. Therefore, volunteers who receive no direct or indirect financial benefit for their services or independent contractors will not receive the projection of the statue.  California Labor Code § 2750.5 names few factors which can be considered when determining whether the worker is an employee or an independent contractor.  Amongst those factors are whether “the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.” “ the individual is customarily engaged in an independently established business.“ “  the individual's independent contractor status is bona fide and not a subterfuge to avoid employee status.”

What is Prohibited:

Under FEHA an employer cannot refuse to hire or employee, refuse to select for training program leading to employment or discriminate in compensation or terms, condition or privileges of employment, if such decision is taken because of a protected characteristics. The adverse employment action involved must be substantial and must negatively affect the employee in order for it to be a violation of the code. Harassing an employee due to the protected characteristics is also prohibited. This protection is generally relied on by women and men who feel that they are being harassed due to their sex. Finally, FEHA also makes it unlawful for an employer to retaliate against an employee for opposing any practice which the employee reasonable felt was in violation of the code or for filing a complaint or testifying in any proceedings related to FEHA accusations.

What are the Protected Characteristics:

An employee is protected from termination, other adverse actions, harassment and retaliation, based on his or her: Race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, sex, marital status, pregnancy or childbirth, sexual orientation or age (if over 40.)

Retaliation:

In addition to prohibiting direct discriminatory conduct, FEHA also prohibits retaliation against an employee for opposing any practice forbidden by the Act or for filing a complaint, testifying, or assisting in proceedings under the FEHA. In august of 2005 and in a 4-2 decision, the California Supreme Court held that an employee can maintain a retaliation action against an employer even where the employee’s protected activity is “subtle” and the employer’s actions are negligible.  The case of Yanowitz v. L’Oreal USA, Inc., involved claims made by a former employee who claimed that she was fired after she refused to terminate an employee based on the orders from her superiors. According to plaintiff the employer wanted to replace the employee and replace her with someone better looking.  According to the court the plaintiff in the case had exercised a protected acitivity and had suffered adverse employment action as a result.  Los Angeles and Riverside employment law attorneys of Employment Law Team can help evaluate your case and advise you on whether the actions taken against you rise to the level of retaliation. Our attorneys can also evluate your whistle-blowing case.

Legitimate Business Reasons May Excuse Discrimination!

One should note that even a discriminatory employment practice may be allowed if there is a legitimate business reason to discriminate. Generally, employers must be able to prove an objective relationship between the discrimination and the requirements of the job or the business. See Cal. Gov. Code § 12940 at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=12001-13000&file=12940-12951.

As an example an employer may discriminate without violating the FEHA if:

  • being in a particular protected classification is a legitimate and necessary qualification for the particular job; or
  • they are complying with an affirmative action plan, security regulations, or other laws.

Therefore, an employer may be allowed to  “intentionally discriminate” against an employee if a particular characteristic is a "bona fide occupational qualification" (BFOQ); or if the employer has a policy that results in “adverse impact discrimination” if that policy is necessary for their business.

What is a BFOQ: Bona-Fide Occupational Qualification is a defense allowing an employer to limit a particular job to members of one sex, religion, age group, or national origin group. The courts have held that BFOQ is a very narrow exception to the general prohibition against discrimination on the basis of those characteristics. Therefore,  an employer claiming that age (or any other trait) is a BFOQ for a job must show that all or substantially all members of the excluded group are incapable of performing the duties of the job and that failure to allow the exclusion would undermine the "essence" (i.e., the central purpose or mission) of the employer's business.