Discrimination may occur in many forms and in various ways. The warning signs may be subtle but damaging. Anti-discrimination laws exist to prevent discrimination against particular groups of people, known as protected groups or protected classes. Various anti-discrimination laws differ in regard to protected groups and the prohibited type of discrimination.
Discrimination means that the person receives less favorable treatment. Treating people negatively and differently because of a specific characteristic they have is discrimination. California’s Fair Employment and Housing Act (FEHA) protects individuals from discrimination in the workplace based on their sexual orientation, gender, religion, race, veteran status, disability, and age. These protections typically apply to employers with at least five employees. In addition, federal discrimination laws protect workers from retaliation for “asserting their rights to be free from employment discrimination.”
There are protections in place under federal and state law, but it can be difficult to prove that discrimination occurred.
What is discrimination?
Discrimination means an employer treats certain employees differently or with disfavor. The Equal Employment Opportunity Commission (EEOC) shields protected classes of people from employment discrimination when the employee suffers:
- Wrongful treatment or harassment;
- Refusal to make reasonable and necessary changes to accommodate the employee’s belief or disability;
- Inappropriate questions or disclosure of medical information; and
- Retaliation for filing a complaint.
The laws protect those in a protected class or category, which are not always the same.
Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of “race, color, religion, national origin, or sex.”
The Pregnancy Discrimination Act, an amendment to Title VII, makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.
The Equal Pay Act of 1963 (EPA) forbids gender-based wage discrimination among those who perform equal work in the same workplace.
The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone based on how old they are. This law protects people who are 40 or older.
Some laws also make it illegal to discriminate against someone on the basis of sexual orientation, gender identity, immigration status, and more.
Types of discrimination claims
If you believe you have been discriminated against based on your status as a member of a protected class, you may bring a claim for:
Discriminatory treatment or intent, when an employee is treated badly or less favorably worse by an employer because of his or her status as a member of a protected class or category.
Disparate impact, which is based on the effect of a discriminatory policy or practice. It focuses on the effect of an employment policy or practice rather than the intent behind it. Policies and practices that appear on their face to be neutral may have an unequal adverse effect on those of a protected class. For example, a strength requirement may rule out women or in an interview, or certain questions may rule out those of a different culture.
Retaliation occurs when the employer punishes an employee for filing a discrimination complaint by treating them badly.
Evidence of discrimination
Evidence basically falls into two categories: direct and circumstantial. Direct evidence may include statements by supervisors or others that relate to the discriminatory action. This type of evidence is typically difficult to obtain, as company personnel tend to avoid openly stating their bias, but it may be in verbal statements, or letters, notes, or emails.
Circumstantial evidence is indirect and creates a presumption of discrimination. According to the “McDonnell-Douglas Test,” set forth in a Supreme Court decision, an employee must first make out at least a “prima facie case,” which is a legally required rebuttable presumption. To make out a prima facie case of discrimination, an employee must:
- Fall within a protected class
- Be qualified for your position
- Experience unfair treatment by the employer
- Be replaced by a person who is not in your protected class
An employee may have enough circumstantial evidence to prove discrimination if they were:
- Treated differently than someone with the same qualifications and experience who is not in the protected class
- Subjected to disrespectful or derogatory comments related to work and aimed at your protected class
- Treatment that is unjust or extreme
- A history or statistics showing bias by the employer towards persons in your protected class
- Very few employees of your protected class at your workplace?
- Other employees in the protected class demoted or receiving adverse treatment
- Complaints from other employees in your protected class about discrimination in the workplace
- Treatment that is counter to company policy
- Less qualified employees who were not in the protected class kept in the same job
Employer denial of the discrimination claim
The employer can and probably will deny the alleged discrimination. They will have an opportunity to provide a non-discriminatory reason for the actions. Most employers do not have to come up with a “good” reason, so long it is not by reason of your protected status. You will then have to provide additional evidence of discrimination. For example, look for evidence that proves:
- The reason given is untrue or terribly inaccurate
- The reason is not sufficient to support the discriminatory act, for example, a discharge
- Your protected status, rather than the stated reason, is the most likely motivation for the employer’s action
- Strong direct or circumstantial evidence of discrimination
Remedies for an employment discrimination case
Each case is unique, but common remedies include:
- Back Pay: Lost wages resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
- Front Pay: Lost future earnings resulting from the discrimination.
- Lost Benefits: These may include health and dental care coverage, profit sharing, stock options, retirement benefits.
- Emotional Distress Damages: These are mental or emotional injuries, also known as pain and suffering, as a result of discrimination.
- Punitive Damages: In some cases, the court may award punitive damages to punish the employer for particularly egregious conduct.
- Attorneys’ Fees
Have you been discriminated against at work?
Discrimination at your work can be a stressful and frustrating experience. If you have suffered discrimination at work, you need to protect your rights and understand your legal options. There are limited times to file a discrimination claim. For more information, please contact the experienced attorneys at Perkins Asbill at 916-446-2000 or contact us online.