Both harassment and discrimination relate to some form of prejudice, but discrimination refers to a specific job-related decision that was motivated by the inappropriate bias. Harassment involves other mistreatment. Thus, a supervisor who uses racial slurs may be liable for harassment for uttering those slurs. However, this does not involve discrimination. On the other hand, if the CEO demotes the same employee based on the same prejudice, the company may be liable for discrimination because there was a specific job-related decision—a demotion—motivated by the inappropriate bias. In the real world, harassment and discrimination often go hand-in-hand.
Discrimination sometimes involves a wrongful termination but not always. Any negative treatment can equal harassment or discrimination. The most pronounced act of discrimination may be to terminate an employee, but there are infinite more ways to discriminate. A supervisor may give someone a less convenient shift, a less profitable assignment, or fewer hours. If any of these are the result of a supervisor being prejudiced, it can equal a viable discrimination claim.
Although California follows the “at will” doctrine such that employers have the right to fire employees even if the employee is performing well and has done nothing wrong. However, it is unlawful to terminate an employee if a substantial motivating factor for the termination was prejudice based on a legally recognized characteristic, which is termed a “protected class.” Some protected classes are listed below.
- Age (40 and over)
- Race, Color, Ethnicity, National Origin (including language use restrictions)
- Denial of Family and Medical Care Leave
- Disability (mental and physical), Medical Condition (cancer and genetic characteristics), Genetic Information
- Sex (including pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), Gender, Gender Identity, and Gender Expression, Sexual Orientation
- Employee reporting a violation of his or her own rights
- Whistleblower reporting that the company is violating a law
Sex discrimination and race discrimination claims are two of the most common complaints we hear. Claims for harassment, discrimination, and retaliation may be based on prejudice against minorities, females or based on inappropriate conduct of a sexual nature. The law explicitly protects minorities and female employees from prejudice based on race or gender and protects employees from being subjected to unwanted sexual advances. A sexist or racist boss often causes problems for workers and for the company who can be forced to pay significant amounts of money because of the supervisor’s wrongful conduct. Companies who do not have policies in place regarding the prevention of discrimination and harassment increase the risk of conflicts in the workplace and of litigation. Companies must also take care to investigate and terminate prejudiced supervisors; otherwise, the company will likely be held liable for all damages and penalties.
A successful discrimination lawsuit can result in significant damages, penalties, and more. If an employee convinces a judge or a jury that discrimination or harassment was “substantially motivated” by, for instance, the fact that an employee is a minority or the fact that an employee reported a violation of his own rights, the company could be held liable for significant amounts of money because there are penalties, multiple types of damages, and more.
If the employee was terminated based on discrimination, the core component of a discrimination claim is the amount of money the employee lost after being terminated. That is, the money the employee would have earned through regular paychecks but did not earn because he was fired. To take an easy example, imagine an employee works full-time for a salary of $50,000.00; the company tells the employee he is being terminated because he is a minority. This is clearly a discrimination. If the employee cannot find a job for exactly 12 months despite trying to do so, the core value of the case would be $50,000.00. If the employee found a job after exactly 6 months, the core value of the case would be $25,000.00. Some people refer to this number as the “economic damages” or “hard damages.” In terms of negotiating settlements, the hard damages often drive most of the discussion.
In addition to so-called hard damages, there are many other remedies available to workers. First, certain claims, including discrimination claims, can trigger punitive damages, which the Court may award to punish improper conduct. Second, emotional distress damages are possible and are often easier to get than punitive damages. Third, there can be significant penalties associated with discrimination. Fourth, interest will further increase the damages. Fifth and finally, an employee wins a discrimination claim will generally be able to force the company to pay all attorney fee costs. This can be scary for a company because the attorney fee amount can be enormous and is often greater than all damages combined.
Under California law, there is a fundamental and well-established public policy against taking any adverse employment action motivated by the fact that an employee has a protected characteristic. Under the Fair Employment and Housing Act (“FEHA”), it is an unlawful employment practice to take any adverse employment action motivated by the fact that an employee has a protected characteristic. Said public policy is embodied in the Constitution of the State of California and California Statutory law, including but not limited to Government. Code § 12940. Judicial opinions have also concretized claims for discrimination. See Tameny v. Atlantic Richfield Company, 27 Cal. 3d 167 (1980) and Rojo v. Kliger, 52 Cal. 3d 65 (1990).
Under California law, the true legal analysis for discrimination can get far more complicated. Are you considering filing a lawsuit? Have you been named in a lawsuit as a defendant? Either way, we can help. Some law firms’ practices are limited to representing solely employees or solely employers. We have the experience and expertise to do both. Although we work on both sides of “the bar,” we like to think of ourselves as serving one and only one side—yours.
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