Behavior that qualifies as discrimination is not always obvious. Having a firm grasp on what the word discrimination means in the eyes of the law, as well as understanding the laws that prevent such behavior from occurring in the workplace, can go a long way towards keeping your company out of trouble.
What is discrimination?
The law in California states that discrimination occurs when an employee or job applicant receives less favorable treatment than others because of a specific characteristic. Under California law, applicants and employees are protected against illegal discrimination by employers based on the following:
- National Origin
- Age (over 40)
- Gender (including pregnancy, childbirth, breastfeeding or related medical conditions)
- Sexual Orientation
- Gender Identity or Expression
- Medical Condition
- Genetic Information
- Marital Status
- Military and Veteran Status
Examples of discrimination can include:
- Allowing female employees to be harassed in the office
- Enacting a policy or procedure that disproportionately affects older workers
- Refusing to accommodate the religious or disability-related needs of certain employees
- Refusing to hire or promote, or demoting or firing, employees because of their sexual orientation
- Refusing to consider job applications from applicants with military experience
Disparate Treatment and Impact
Discrimination is generally broken down into two categories: disparate treatment and disparate impact.
When an employee is singled out because of their protected characteristic, this is known as "disparate treatment." For example, if an employer takes a negative action against an employee because they belong to a certain religion, this would be disparate treatment. In a lawsuit involving such treatment, the employee would need to provide evidence showing that the employer had discriminatory intent when the negative action occurred.
Disparate impact occurs when a policy or procedure is put into place by an employer that applies to everyone at the company but tends to have a negative impact on people with certain protected characteristics. Discriminatory intent is not required for disparate impact to take place.
For example, in EEOC v. Dial Corp., it was alleged that the implementation of a pre‑employment strength test that was not necessary for the job had a disparate impact on women. The company's policy was to have job applicants carry a 35-pound bar and to lift that bar onto frames that were between three and five feet off the floor. After the policy was put into place, the hiring of females dropped from 46% to 15%. The court concluded that the policy had a disparate impact on female applicants and that the employer had failed to show, as a defense, that the policy was a business necessity or a statistically valid way of measuring the likelihood of injuries occurring on the job.
Discrimination in the workplace is against the law
Making certain that discrimination does not exist in the workplace is not a matter of company policy, it is the law both at the state and federal levels.
At the state level, California follows the Fair Employment and Housing Act (FEHA) which protects employees from discrimination based upon race, religion, gender, disability, sexual orientation, veteran status, age, and other protected status.
Federally speaking, there are multiple sets of laws that aim to keep the workplace a safe space for all employees. Those laws include:
- The Civil Rights Act of 1964 (prohibits discrimination based on race, sex, color, religion, and nationality)
- The Americans with Disabilities Act (protects people with physical and mental disabilities)
- The Equal Pay Act of 1963 (prohibits employers from having different rates of pay between the men and women for the same work product)
- The Age Discrimination Act (protects older aged employees from discrimination)
It is not only important for employers to understand the laws concerning discrimination, but for employees to both understand, and follow, the laws themselves. Such action helps create a safe and productive work environment. Skilled and experienced legal counsel can help draft policies that are congruent with the law for the purposes of being distributed throughout a company. Contact Mohsen Parsa today for assistance.