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Discrimination

Workplace discrimination based on an employee’s protected class or characteristic is illegal. 

Discrimination

  • It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California for an employer, because of the a protected class or characteristic of any person, to refuse to hire or employ them or to refuse to select them for a training program leading to employment, or to bar or to discharge them from employment or from a training program leading to employment, or to discriminate against them in compensation or in terms, conditions, or privileges of employment. Government Code § 12940(a).
  • Discrimination occurs when an employee or job applicant receives less favorable treatment because of a specific protected class or characteristic they have.  Government Code § 12940(a).

Protected Classes and Characteristics

  • Age. Age discrimination occurs when an employee or job applicant over the age of 40 receives less favorable treatment because of their age. This means that covered employers may not refuse to hire older workers who are equally or more qualified than other candidates simply because of their age, nor may covered employers fire employees once they reach a certain age. Government Code § 12926 (b), (j).  A supervisor’s “retirement discussions with [employee] . . . [are] circumstantial evidence showing [supervisor’s] bias in his decision-making process.”  France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015).
  • Race | Color | National Origin | Ancestry. It is unlawful in California for employers to discriminate against employees or job applicants based on their race, the color of their skin, their national origin, or their ancestry.  Government Code § 12940 (a).  It is also unlawful for employers to discriminate on the basis of an employee’s association with members of other races, skin colors, national origins, or ancestries.  Government Code §§ 12926 (o), 12940 (a).  Employees are protected even if they are members of racial groups that have not been traditionally discriminated against (like Caucasian employees).  California has therefore extended its protections against discrimination to employees that are perceived to be of a certain race, color, national origin, or ancestry (or perceived to associate with these groups).  Government Code § 12926 (o).
  • Religion. It is unlawful to discrimination against someone for their religious beliefs.  If an employee has a genuine religious belief or observance that interferes with their job duties or work schedule, the employer must try to accommodate it.  Government Code § 12940 (l)(1). The test to determine whether a religious belief is a “genuine” one is whether it is sincerely held by the employee. California Fair Employment & Housing Com. v. Gemini Aluminum Corp., 122 Cal.App.4th 1004, 1013 (2004).
  • Physical and Mental Disabilities. Physical disabilities are the most common type of disability in the workplace. In most cases, a physical disability is any bodily condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s major systems and limits a major life activity.  Government Code § 12926 (m)(1). A condition limits a major life activity if it makes the achievement of that activity difficult.  Government Code § 12926 (m)(1)(B)(ii).  An employee does not have a qualified disability if their condition is mild and temporary. A mental disability, for these purposes, is any mental or psychological condition that limits a major life activity. Government Code § 12926 (j)(1); California Code Regs., tit. 2 § 11065 (d)(1). Both employees and job applicants have a right to be free from discrimination due to their mental disability.  Government Code § 12940 (a).  An employer may not discriminate based on a perception that an employee or applicant has a mental disability, whether or not the belief is correct. Government Code § 12940 (j)(4), (j)(5).
  • Medical Condition. A medical condition is defined as any genetic characteristic associated with a disease or a health impairment related to a cancer diagnosis. Government Code § 12926 (i); California Code Regs., tit. 2 § 11065 (d)(7). California law protects employees with medical conditions, meaning that even though an employee is not currently experiencing symptoms, their employer may not discriminate against them.
  • Genetic Information. Employers may not collect genetic information from an employee or prospective employee to make any decisions regarding that individual’s employment. Government Code § 12940 (o). The phrase genetic characteristics refers to A gene, chromosome, or combination of genes known to cause a certain disease or to greatly increase the risk of it, but hasn’t manifested into actual disease, and inherited characteristics of a disease or disorder, or a characteristic that makes an individual more likely to develop a disease but hasn’t manifested into disease yet. Government Code § 12926 (g), (i).
  • Marital Status. An employer does not have the right to discriminate against a worker for being single, married, separated, divorced, or widowed. Government Code § 12940 (a). Employers are also prohibited from adopting outright bans on hiring married workers at the same place of employment.  Hope International University v. Superior Court, 119 Cal.App.4th 719, 724 (2004).
  • Sex. An employer may not favor or discriminate against persons based on their sex.  Government Code § 12940 (a). Sex normally refers to whether a person is biologically a male and female. But the word “sex” in this context is broader than how it is normally used. It can include discrimination based on: Pregnancy or medical conditions related to pregnancy, Childbirth or medical conditions related to childbirth, Breastfeeding or medical conditions related to breastfeeding, Physical gender, Gender identity, and Gender expression. Government Code § 12926 (r).
  • Pregnancy. It is unlawful for an employer to discriminate against a pregnant employee on the basis of their pregnancy. Pregnancy discrimination by a qualified employer is always prohibited, regardless of whether the employee is disabled from the pregnancy. Government Code §§ 12926 (r)(1)(A), 12940 (a), 12945. Reasonable accommodations can be important for female employees because an employer will sometimes be required to grant extended family leave.  Government Code § 12945 (b).
  • Gender | Gender Identity | Gender Expression. Qualified employers are prohibited from discriminating against employees on the basis of their gender, gender identity, or gender expression. Government Code § 12940 (a). These terms are broad and include a person’s gender-related appearance and behavior, even if that isn’t stereotypically associated with the person’s assigned sex at birth. Government Code § 12926 (r)(2).
  • Sexual Orientation. It is unlawful for an employer to discriminate against a person for their sexual orientation. Government Code § 12940 (a).  The phrase sexual orientation refers specifically to whether a person is heterosexual, homosexual, or bisexual. Government Code § 12926 (s). Employers are also prohibited from discriminating against employees for their perceived sexual orientation. Government Code § 12926 (o).
  • Military and Veteran Status. California’s anti-discrimination protections apply to active military service members and veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. Government Code § 12926 (k).
  • Immigration Status. All persons, regardless of their immigration status, are protected by California’s employment laws.  Labor Code § 1171.5 (a). non-citizens are protected against discrimination to the same extent as United States citizens.  Labor Code § 1171.5 (a).  Employers are prohibited by law from hiring or continuing to employ undocumented immigrants.  8 U.S.C. § 1324a(a). The employer’s ability to investigate their employees’ legal status is limited, however. They may not request more or different documents than are required by the federal government. Nor may they refuse to honor immigration-related documents that reasonably appear to be genuine.  Labor Code § 1019.1 (a)(1), (2). If the employee is present in the United States legally, and the employer nevertheless discriminates against them on the basis of their status as an immigrant, the employer may have engaged in national origin discrimination. It is unlawful for employers to discriminate against an employee based on their national origin. Government Code § 12940 (a). National origin discrimination can include discrimination against those holding the type of driver’s license that California gives to non-citizens. Government Code § 12926 (v); Vehicle Code § 12801.9. Employers are prohibited from reporting or threatening to report their employees’ citizenship or immigration status in retaliation for the employee’s exercise of an employment-related right.  Labor Code § 244.
  • Language. It is unlawful for employers to limit or prohibit the use of any language in any workplace. Government Code § 12951 (a). These issues commonly arise when an employer adopts an English-only requirement in their workplace. An employer may limit or prohibit the use of a language in the workplace if: The language restriction is justified by a business necessity, The employer has notified its employees of when the language restriction is required to be observed, The employer has notified its employees of the consequences of violating the language restriction, and There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. Government Code § 12951. A language restriction is considered a business necessity when it is needed to ensure the safe and efficient operation of the business. The language restriction must also effectively fulfill the business purpose it is supposed to serve. Government Code § 12951 (b).
  • Political Activities. California law prohibits employers from controlling their employees’ political activities. an employer may not punish an employee for being a member of a specific political party. Nor may employers forbid employees from going to political rallies or becoming candidates for public office. Labor Code §§ 1101, 1102; Labor Code § 96 (k). Employers are also prohibited from trying to coerce or influence their employees to take any sort of political action.  Labor Code § 1102.  Employers are prohibited from retaliating against employees who oppose such practices.  Labor Code § 1102.5.  It is criminally punishable as a misdemeanor, and also fines, fees, and civil damages can be imposed against the employer (and sometimes recovered by the employee).  Labor Code § 1103; Labor Code §§ 1102.5-1105.

Types of Discrimination

  • Disparate Treatment.  Disparate treatment discrimination is illegal when an employee is specifically targeted or singled out because of their protected characteristic. In these kinds of cases, the employer’s actions must be motivated by a discriminatory intent.  Disparate treatment might happen when the employer demotes, refuses to hire, refuses to promote, harasses, or takes some other negative action against the specific employee.  CACI No. 2500.
  • Disparate Impact. Disparate impact discrimination is illegal when an employer adopts a policy that applies to all employees, but the policy has a more negative impact on those with a certain protected characteristic than those without it. Disparate impact claims arise when employers adopt policies that are “facially neutral,” in that they don’t appear to discriminate against a protected characteristic.  The policy might be unlawful, however, if it nevertheless has a disproportionately adverse impact on employees with a protected characteristic.  CACI No. 2502.
  • Adverse Employment Action. Discrimination is when an adverse employment action is substantially motivated by a protected class or characteristic.  Examples of adverse employment actions include: your pay was lowered because of your protected characteristic; you were given negative write-ups or performance reviews because of your protected characteristic; you were given fewer working hours because of your protected characteristic; you were terminated from work because of your protected characteristic.  CACI No. 2509.

Failure to Prevent Discrimination

  • Employers who become aware that discrimination in the workplace is occurring have a duty to put a stop to it and to take all reasonable steps necessary to prevent it in the future.  Government Code § 12940 (k).
  • The employee must show that they were subject to discrimination, harassment, or retaliation; the employer knew or should have known about the discrimination, harassment, or retaliation; the employer did nothing (or not enough) to prevent the discrimination, harassment, or retaliation from happening; and the employee was harmed by the discrimination, harassment, or retaliation.  Alejandro v. St Micro Elecs., Inc., 129 F. Supp. 3d 898, 913 (N.D.California 2015).
  • Aiding and abetting discrimination is illegal.  Government Code § 12940(i).

Retaliation

  • Employees are often worried about the consequences of pursuing a discrimination claim against their employer.  However, it’s important to understand that employers may not terminate or take adverse employment actions against their employees simply because the employee opposed the employer’s discriminatory policies.  Government Code § 12940 (h).
  • An employee who has suffered discrimination has a right to file a complaint, testify, or assist in any proceeding in a discrimination claim against their employer.  The employer may not retaliate against them for doing so.  Government Code § 12940 (h).